Citation Nr: 21013832 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-43 346 DATE: March 10, 2021 REMANDED Entitlement to service connection for a mental disorder, to include depression and/or anxiety, claimed as mental health conditions, to include as secondary to service-connected tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter on appeal was before the Board in August 2018 and December 2019 when the Board remanded the appeal for additional evidentiary development. Although the Veteran was previously represented by a private attorney, in March 2017, the attorney properly withdrew. Since that time, the Veteran has not appointed a new attorney, agent, or representative, and he remains unrepresented before the Board in this appeal. Entitlement to service connection for a mental disorder, to include depression and/or anxiety, to include as secondary to service-connected tinnitus, is remanded. Private treatment records during the appeal period show the Veteran has a medical history of anxiety and of being prescribed a psychiatric medication, namely bupropion, brand name Wellbutrin. Further, the August 2013 VA examination report indicated that the Veteran’s service-connected tinnitus led to anxiety and depression. Pursuant to the Board’s August 2018 Remand, the Veteran had a VA examination in August 2019. In December 2019, the Board found that the VA medical opinion was inadequate, as it failed to reconcile the finding of no diagnosis of anxiety or depression with the pertinent evidence of record noted above as well as the fact that the Veteran reported being prescribed medication for depression and anxiety by his primary care physician during the August 2019 examination. Pursuant to a March 2020 Board Remand, the Agency of Original Jurisdiction (AOJ) obtained a March 2020 addendum medical opinion. The examiner was asked to provide a diagnosis for any psychiatric disorder of record during the pendency of the claim, specifically discussing the present or absence of any anxiety or depressive disorder. If no psychiatric disorder could be identified, the examiner was asked to specifically comment on the propriety of the Veteran’s prior treatment relating to anxiety (and depression,) to include his antidepressant prescription. The examiner was then asked to provide a direct opinion which addressed the Veteran’s 1979 report of medical history wherein he noted having symptoms of depression or excessive worry, as well as nervous trouble. Additionally, the examiner was asked to opine as to whether any psychiatric diagnosis is caused or aggravated by his service-connected tinnitus. In the March 2020 addendum opinion, the examiner incorrectly stated that the Veteran had no service-connected conditions rated, when the Veteran is, in fact service-connected for coronary artery disease, rated as 60 percent disabling, bilateral hearing loss, rated as 10 percent disabling, and tinnitus, rated 10 percent disabling. Importantly, the Veteran has asserted that his service-connected tinnitus lead to anxiety and depression, and the record shows a diagnosis of anxiety and prescribed psychiatric medication. The examiner appears to have improperly relied on the fact that the Veteran did not seek VA healthcare treatment for any mental health disorder, as rationale for her opinion that the Veteran does not have a mental health disorder diagnosis during the appeal period. The examiner incorrectly, repeatedly states that there is no evidence of a current psychiatric disorder, when the evidence shows private treatment for an assessment of anxiety and a prescription for psychiatric medication. The examiner states that the Veteran’s lay statements alone are insufficient to establish a mental disorder diagnosis, however the examiner does not acknowledge the private treatment records of record showing an assessment of anxiety during the appeal period, which is carried in the Veteran’s diagnoses, as well as the evidence of continued monitoring and treatment with psychiatric medication. Thus, the VA examiner’s opinion is based on an inaccurate factual premise. The examiner further states that the Veteran does not have a current psychiatric disability because he has not submitted evidence of his diagnoses, symptoms and treatment that existed from the time of his discharge from the military until the present, however such is not required. Service connection may be granted for a disability shown and resolved during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing Board’s denial of service connection where disability resolved itself during pendency of appeal). The examiner also states that it is a requirement for a diagnosis that the Veteran currently report any psychiatric or sleep symptoms causing significant distress or social/occupational impairment, but that the Veteran’s symptoms are rather vague, and he only reports intermittent mood fluctuations. The examiner does not address the Veteran’s use of a psychiatric medication, and the symptoms of an underlying mental disorder. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a mental disorder, to include as secondary to service-connected tinnitus, thus, an additional remand is required for a new examination with a different examiner. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and etiology of any mental disorder, to include anxiety and depression with an examiner other than Dr. A.S. who authored the March 2020 opinion. The entire claims file including this Remand and prior Board Remands must be reviewed by the examiner. Based on a review of all the evidence of record and the Veteran’s elicited history, the examiner is asked to: Identify all psychiatric disorders during the appeal period (since March 2013) or in proximity to the claim, even if such psychiatric disorder has resolved, specifically addressing the presence or absence of any anxiety or depressive disorder. Opine as to whether it is at least as likely as not (50 percent or greater probability) that any currently or previously diagnosed psychiatric disorder had its onset in service, or is otherwise related to the Veteran’s service, or any incident therein. If not, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder, to include anxiety and/or depression, was caused by or aggravated by the Veteran’s service-connected tinnitus. A complete rationale for all opinions must be provided that addresses the Veteran’s statements regarding the onset of his symptoms, service and private treatment records and the August 2013 VA examination report that the Veteran’s tinnitus resulted in anxiety and depression. (Continued on the next page)   The Veteran is to be considered credible for the limited purpose of the medical opinions requested herein. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, Associate 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.