Citation Nr: 21010995 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-31 051A DATE: February 26, 2021 ORDER Entitlement to service connection for unspecified depressive disorder is granted. REMANDED Entitlement to service connection for bilateral ankle vein insufficiency disorder is remanded. Entitlement to service connection for bilateral calf vein insufficiency disorder is remanded. Entitlement to service connection for a back disorder, to include as secondary to bilateral calf and ankle vein insufficiency disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The unspecified depressive disorder is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to October 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and October 2014 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2017 hearing. These issues were previously before the Board in March 2019, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the March 2019 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2019 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA or private treatment records (PTRs), to include those from Vet Center, and to obtain VA medical opinions. Additional VA treatment records were successfully added to the claims file in October 2019 and September 2020. In October 2019, the RO sent a letter to the Veteran requesting that he identify and authorize for release any outstanding PTRs, to include those from Vet Center. VA did not receive a reply from the Veteran; however, the Board notes that the Vet Center program was not established by Congress until 1979, and therefore 1973 Vet Center records would not exist. The Veteran obtained December 2019, and February and August 2020 VA medical opinions. However, for the reasons stated in the remand section below, the issues of the bilateral vein insufficiency disorder, the back disorder, the bilateral hearing loss, and the bilateral tinnitus must be remanded again. Entitlement to service connection for unspecified depressive disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran alleges that the depressive disorder began during service and has existed since that time. In a December 2015 statement, the Veteran stated that he sought treatment for depression when he was discharged from active duty. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). During a February 2020 VA examination, the examiner provided a diagnosis of unspecified depressive disorder. Several VA treatment records indicate that the Veteran has received treatment for the depression from VA, including entries in October and December 2012, February, March, and October 2013, February, March, April, and May 2014, March and May 2016, and April 2017. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In a December 2015 statement, the Veteran asserted that when he was discharged, he went to the VA Center in Dayton, Ohio where he was diagnosed with depression, and given medication for approximately six months. He also stated that the depression was unrelated to his unemployment. At the November 2017 Board hearing, the Veteran testified that within a couple of weeks of separation from service, he went to the VA hospital in Dayton, Ohio seeking treatment for depression. He stated that he went there for several months as the depression hit him pretty hard, but he did not recall whether he sought more treatment elsewhere. The Veteran’s wife also spoke, stating that she met her husband in 1976, and that she spoke with his mother about his depression. His mother stated that she thought he was depressed because he entered the military at such a young age, and that when he got out, there was not anything else there for him upon return to Dayton. His wife stated that after while his depression got a little better from time to time, it has remained with him for as long as she has known him, and recently gotten worse. During the February 2020 VA examination, the Veteran reported that while he did not seek mental health treatment while in service, he went to the Dayton VA within two to three weeks of being released from the military as he was having some very serious issues with readjusting, and he was given a handful of drugs that did nothing but help him sleep. The Board finds these statements to be competent and credible as the Veteran’s statements have remained consistent throughout the appeal period, they are corroborated by the Veteran’s wife, and based on the Veteran’s demeanor at the Board hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, demeanor, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the unspecified depressive disorder is related to active service. The Veteran underwent a VA examination in February 2020 where the examiner provided a positive nexus opinion that it is at least as likely as not that the unspecified depressive disorder was incurred in or caused by service. The examiner opined that although the Veteran has had a variety of stressors in the years since his release from the military, including but not limited to, occupational and functional, he is given the benefit of the doubt that at least some of his current depressive and anxiety symptoms are related to active duty service. The examiner noted that although records from the Dayton VA are not found in the claims file, the Veteran did testify under oath at the November 2017 Board hearing that he participated in some mental health treatment through the Dayton VA shortly after military service. The examiner thus concluded that at least some of his current symptoms began in the military, and therefore the unspecified depressive disorder stems from the military. The Board affords the February 2020 VA medical opinion significant probative weight. It reflects a full review of the claims file, and consideration of the various lay statements throughout the appeal period. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Although a November 2017 VA memorandum noted that the relevant medical records at the Dayton VA could not be located, the Board finds the Veteran’s statements to be competent and credible. Accordingly, the claim of entitlement to service connection for an unspecified depressive disorder is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral ankle vein insufficiency disorder is remanded. 2. Entitlement to service connection for bilateral calf vein insufficiency disorder is remanded. 3. Entitlement to service connection for a back disorder, to include as secondary to bilateral calf and ankle vein insufficiency disorder, is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to service connection for tinnitus is remanded. First, remand is required for addendum VA medical opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Bilateral Vein Insufficiency Disorder The Veteran underwent a VA examination in December 2019 where the examiner provided a negative nexus opinion. The examiner explained that the Veteran’s vascular condition is related to the valves in the common femoral vein, which is higher up in the thigh through which blood is returned to the heart from the veins further away. The examiner stated that a valve insufficiency may cause drainage issues manifested as swelling in the lower leg. The examiner opined that the femoral vein valve insufficiency is due to a genetic predisposition or congenital condition, and is not something that would have been able to be evaluated at his entrance examination because it is deep in the leg. The examiner also opined that it was at least as likely as not present from a young age, and stated that medical literature suggests that obesity, inactivity, prolonged standing, diabetes, and heart or kidney issues may exacerbate the problem. The examiner noted the Veteran’s assertions that the vein insufficiency disorder was caused by the elastic bands used to blouse his uniform trousers in service, and explained that while there is the possibility that compression of the lower legs could temporarily worsen the venous congestion, they are not the cause. The examiner stated that this temporary, but possibly daily compression, is not sufficient to cause permanent aggravation or worsening beyond its normal progression; however, the examiner failed to provide any other supporting rationale explaining why this was merely temporary. Additionally, while the examiner opined that this condition is congenital, and that the compression is not sufficient to cause permanent aggravation or worsening, they failed to use the proper standard. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, VA's Office of General Counsel has distinguished between congenital or developmental defects (for which service connection is precluded by regulation) and congenital or hereditary diseases (for which service connection may be granted if the disease initially manifested in or was aggravated by service). VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at para. 2. A congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. Quirin, 22 Vet. App. at 395. Further, although the examiner addressed the Veteran’s assertions that the vein insufficiency was caused by blousing his boots while in service, they failed to address other lay statements made by the Veteran. In a December 2012 statement, the Veteran asserted that marching one to five miles per day, in addition to blousing his boots, caused the swelling to get so bad that he could barely walk, stand, or sit. Two June 2013 statements and testimony at a February 2015 Decision Review Officer (DRO) hearing indicate that the tension on his legs prohibited hair growth on the lower legs. At the November 2017 Board hearing, the Veteran asserted that he thought it was normal and ignored it, but that it got worse over time. The Veteran’s wife testified that she used to ask him why part of his leg was darker than the other, and that they did not know that it was because the circulation was cut off. Accordingly, remand is required for an addendum VA medical opinion. Back disorder The same examiner who provided the negative nexus opinion for the vein insufficiency disorder also addressed the back disorder in a December 2020 opinion. The examiner endorsed that it is at least as likely as not that the back disorder was proximately due to or the result of the vein insufficiency disorder, but then stated that it is less likely than not. The Board finds these statements to be contradictory. The examiner explained that the musculoskeletal tissues of the back are medically separate and distinct from the venous system of the left leg, and that there is no known or published causal, proximately causal, or aggravating relationship between the venous system of the leg and the lower back. However, the examiner failed to address service connection on a direct basis. Numerous service treatment records (STRs), including entries in July, September, and October 1971, indicate that the Veteran suffered a back injury after falling down the stairs. The examiner also failed to address the Veteran’s lay statements. Two June 2013 statements and testimony from the February 2015 DRO hearing, indicate that the Veteran asserted that he has had major back issues since leaving service in 1973. At the November 2017 Board hearing, the Veteran asserted that his back has always bothered him since the fall during service, and that his back hurts more when it is cold or raining. His wife testified that he always told her about his back, and that he could not carry things up the steps or do a lot of lifting. She had believed that he was simply lazy, but his mother corrected her and said that it was due to the fall. The RO obtained an August 2020 addendum VA medical opinion that also provided a negative nexus opinion, addressing service connection on a direct basis. The examiner explained that a May 2013 lumbar spine x-ray showed normal bony alignment, disc spaces well-maintained, no fracture-dislocation, or degenerative or changes, and that the sacroiliac joints were intact. The examiner stated that the spine shows no objective arthritis or focal trauma that would have resulted from a fall on the stairs 40 years ago, and that the fall is fully resolved and did not result in focal injury. The examiner noted February 1994 records that showed no evidence of scoliosis, normal range of movement, that the Veteran was able to easily squat and rise, walk on tiptoes and heels, and that he was a weightlifter. The examiner stated that the diagnosis of unspecified dorsalgia is likely due to his radiation therapy for the prostatic carcinoma. The examiner explained that the radiation has resulted in radiation proctitis, which is considered in medical literature to be a reasonable source due to radiation damage to neurological tissues of the spine as the spinal nerves exiting the back. However, the examiner also failed to address the same lay statements that the December 2019 examiner had failed to address. Accordingly, remand is required for an addendum VA medical opinion. Bilateral hearing loss and tinnitus The Veteran underwent a VA examination in December 2020 where the examiner provided negative nexus opinions for both the bilateral hearing loss and tinnitus. Regarding the bilateral hearing loss, the examiner explained that the Veteran denied combat noise exposure, and that he was not provided hearing protection in his manufacturing career following service. The examiner noted that the STRs were silent for complaints of hearing loss, and that the Veteran’s right ear was found normal on entrance and separation from service, and that the thresholds had been unchanged. For the left ear, although there was some hearing loss found upon entry to service in the 3000-4000 Hz range, his separation physical documented normal left ear hearing at all test frequencies. Therefore, the examiner concluded that the left ear hearing loss was transient in nature, and not a permanent loss. The examiner noted August 1989 treatment records indicate that the Veteran had complained of hearing loss for about six years. Finally, the examiner explained that there was no aggravation of a pre-existing hearing loss in the left ear because it was not present at separation. Regarding the tinnitus, the examiner explained the STRs are silent for complaints of tinnitus, and that March 2004 treatment records show ringing in the ears for about five months. The examiner stated that there was no objectively verifiable noise injury while on active duty, and thus the association between tinnitus and service is speculative. However, the examiner failed to address the Veteran’s lay statements. In a December 2012 statement, the Veteran asserted that the bilateral hearing loss was due to extreme gun fire while in basic training, and requalifying at the gun range while at the permanent duty station. In a June 2013 statement, the Veteran asserted that he had hearing problems and ringing ears from the onset of service, immediately after basic training. He stated that he had issues hearing what people were saying. At the February 2015 DRO hearing, the Veteran asserted that he had a hearing test when he was hired by IBM in 1976, and he was told that he had noticeable hearing loss. At the November 2017 Board hearing, the Veteran asserted that his military occupational specialty was communications, and that he was exposed to loud noises coming through the phone lines while testing equipment. Accordingly, remand is required to obtain an addendum VA medical opinion. Second, remand is required to obtain missing VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). March 2013 and March 2016 VA treatment records indicate that outside treatment records were scanned into Vista imaging. The Board does not have access to Vista imaging, and therefore these records will need to be added to the Veteran’s claims file separately. Finally, although the Veteran did not reply to the October 2019 letter requesting that he identify and authorize for release any outstanding PTRs, while on remand, the RO should make another attempt to obtain these records. October 2012 and July 2016 VA treatment records indicate that the Veteran sought outside private medical treatment. While some PTRs are in the Veteran’s claims file, it is unclear whether they represent the full extent of the Veteran’s PTRs. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically any outside treatment records uploaded to Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral vein insufficiency disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) Please provide an opinion regarding whether the Veteran’s condition is a congenital defect or disease. (b) If the condition is a congenital disease, the examiner must provide an opinion regarding whether bilateral vein insufficiency disorder clearly and unmistakably pre-existed active service. If so, the examiner must provide an opinion regarding whether it clearly and unmistakably was not aggravated by active service. (c) If the condition is a congenital defect, the examiner must provide an opinion regarding whether the defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. (d) If the condition is not congenital, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral vein insufficiency disorder had onset in, or is otherwise related to, active service. (e) The examiner must address the following: 1) The December 2012 statement where the Veteran asserted the condition was due by blousing his boots and marching one to five miles per day; 2) two June 2013 statements and testimony at a February 2015 Decision Review Officer (DRO) hearing indicate that the tension on his legs prohibited hair growth on the lower legs; 3) the November 2017 Board hearing; and 4) the December 2019 VA medical opinion. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the back disorder had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the back disorder is caused by the bilateral vein insufficiency disorder. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the back disorder is aggravated by the bilateral vein insufficiency disorder. (d) The examiner must address the following: 1) the relevant STRs regarding an in-service fall, and treatment for back pain; 2) two June 2013 statements and testimony from the February 2015 DRO hearing, indicating that he has had major back issues since leaving service in 1973; 3) the November 2017 Board hearing testimony; and 4) the December 2019 and August 2020 VA medical opinions. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral hearing loss and bilateral tinnitus from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active service. (b) The examiner must provide an opinion regarding whether the left ear hearing loss clearly and unmistakably pre-existed active service. If so, the examiner must provide an opinion regarding whether it clearly and unmistakably was not aggravated by active service. (c) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral tinnitus had onset in, or is otherwise related to, active service. (d) The examiner must address the following: 1) the December 2012 statement where the Veteran asserted that the bilateral hearing loss was due to extreme gun fire while in basic training, and requalifying at the gun range while at the permanent duty station; 2) the June 2013 statement, the Veteran asserted that he had hearing problems and ringing ears from the onset of service, immediately after basic training; 3) February 2015 DRO hearing, where the Veteran asserted that he had a hearing test when he was hired by IBM in 1976, and he was told that he had noticeable hearing loss; 4) the November 2017 Board hearing testimony; and 5) the December 2020 VA medical opinions. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.