Citation Nr: 21010396 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 190208-2949 DATE: February 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder diagnosed as major depressive disorder is granted. FINDING OF FACT The Veteran’s major depressive disorder is caused by the Veteran’s service-connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder diagnosed as major depressive disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to December 1974. The Veteran selected the Higher-Level Review lane when opting to participate in the Rapid Appeals Modernization Program (RAMP) in August 2018. The Veteran’s claim was denied by a January 2019 Higher-Level Review decision that considered the evidence as of the August 2018 RAMP election form. In January 2019, the Veteran appealed to the Board of Veterans’ Appeals (Board) for direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans who disagree with VA's decision on their claim. The Veteran chose to participate in VA's test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. In August 2019, the Board denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed this denial to the U.S. Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued a Memorandum Decision vacated the Board’s decision and remanded the appeal to the Board. The Veteran seeks service connection for an acquired psychiatric disorder that he contends is related to his service-connected tinnitus or the passing of his mother that occurred while he was in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for a disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). “When aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Allen v. Brown, 7 Vet. App. 439 (1995). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. After a review of the evidence, the Board finds that service connection for an acquired psychiatric disorder diagnosed as major depressive disorder is warranted on a secondary basis. In May 2017, the Veteran underwent a private psychiatric evaluation. The Veteran reported that he believed he had depression mostly related to his daily struggle with tinnitus, though he also reported still feeling sadness regarding his mother’s death, which occurred during his active service. The private psychiatrist specifically stated that the Veteran did not meet the stressor criteria for posttraumatic stress disorder (PTSD). During the examination, the Veteran reported that he “get[s] angry about having tinnitus and [that he] holds a lot inside [with regard to it.]” He reported that it is very difficult for him to relax because of his tinnitus. “I feel that I have to be doing something all the time to distract myself.” He also reported that it causes him difficulty concentrating and impairs his ability to initiate sleep. He also reported that his frustration impacts his relationship with his wife and others because he is “short” and “snappy” with people. A diagnosis of major depressive disorder was made, based on symptoms including “depressed mood most of the day, nearly every day.” The private psychiatrist ultimately opined that “it is at least as likely as not that the Veteran’s PTSD was incurred in or caused by tinnitus and the death of his mother has contributed to his mood disorder.” The Veteran was also provided a VA examination in August 2017. The examiner disagreed with the private psychiatrist’s diagnosis of major depressive disorder because the examiner stated that “major depression involves ‘depressed mood most of the day nearly every day’ for at least a two-week period,” and stated that the private psychiatrist indicated that he had made this determination despite the Veteran’s statement that his “depression doesn’t last for the whole two weeks.” After review of the other VA treatment records the examiner found no evidence of depression, with all of the routine depression screenings as negative. The examiner instead opined that the Veteran did not have a current diagnosis of any psychiatric disorder. The examiner, however, did note the Veteran had a history of fluctuating mood and “ups and downs.” The examiner further stated that he was in disagreement with the private evaluation from 2017 for a number of reasons. The examiner notes that they have seen other evaluations by this psychiatrist and that it appears that veterans are referred to this doctor by a service representative for the purpose of obtaining or increasing service connection for mental health conditions. The independence/impartiality of such a hired evaluation is thus in question. The examiner also stated that the psychiatrist seems to make some rather unusual claims in the evaluation. The examiner notes the psychiatrist’s report that the Veteran feels very self-conscious about his tinnitus and that his self-esteem has been affected by it. The examiner states that this “seems unusual, given that nobody can notice or see a person is having tinnitus. This examiner has seen likely hundreds of people who are service-connected for tinnitus, and none of them seem to describe those kind of effects (e.g. "self-esteem" problems from it).” The examiner then opines that it appears highly unlikely that any tinnitus significantly impacts things like marital and social relationships that the Veteran reports. After review of the evidence of record, the Board finds that the evidence establishes that the Veteran has a diagnosis of major depressive disorder that at least as likely as not has been caused by his service-connected tinnitus. The Board finds the opinion provided by the May 2017 examiner is at least in equipoise with the opinion provided by the August 2017 examiner. The private examiner explained that the Veteran feels very self-conscious about his tinnitus and that his self-esteem has been affected by it. The examiner noted that the Veteran’s condition has resulted in symptoms of irritability, difficulty concentrating, and difficulty initiating sleep. While the August 2017 examiner disagreed with the diagnosis provided by the examiner, the May 2017 examiner provided the criteria necessary for a diagnosis of major depressive disorder and opined that the Veteran’s symptoms and subjective reports met that criteria. The Board finds this opinion to be of greater probative weight than the findings of the August 2017 examiner that largely appears to dismiss the Veteran’s complaints based upon the reports of how other Veteran’s have responded to similar symptoms and the Veteran’s reports during routine depression screenings. While the May 2017 examiner’s opinion stated that “his PTSD” was incurred in or caused by tinnitus, the Board notes that the examiner has specifically stated that the Veteran did not meet the criteria for PTSD and had provided a diagnosis of major depressive disorder. The Board finds that reading the document as whole that the May 2017 examiner’s opinion is that the Veteran’s major depressive disorder was incurred in or caused by his service-connected tinnitus. The Board finds the May 2017 examiner to be competent and credible, and as the report was based on accurate facts and objective examinations, the Board finds this opinion is entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran’s major depressive disorder, not otherwise specified has been caused by his service-connected tinnitus. As a result, the Board finds that the criteria for entitlement to service connection for major depressive disorder have been met. See Allen, 7 Vet. App. at 439 (1995); 38 C.F.R. §§ 3.102, 3.310. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.