Citation Nr: 21020732 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-26 170 DATE: April 8, 2021 ORDER Service connection for acquired psychiatric disorder, to include as secondary to service-connected shoulder and elbow disabilities, is granted. FINDING OF FACT The competent and probative evidence tends to show the Veteran's current acquired psychiatric disorder is proximately due to chronic pain resulting from his service-connected bilateral shoulder and elbow disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2020 when it was remanded for additional development, and it now returns to the Board for appellate consideration. On remand, the AOJ obtained the requested VA medical opinion and the Board finds there has thus been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Secondary Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim decided herein. *** The Veteran seeks service connection for an acquired psychiatric disability, to include as secondary to service-connected tinnitus, bilateral shoulder disability, and bilateral elbow disability. See 07/24/2018 VA 21-526EZ, Fully Developed Claim; see also 07/24/2018 VA 21-4138, Statement in Support of Claim. Turning to the evidence, the Veteran was diagnosed with unspecified depressive disorder upon examination in September 2018. See 10/01/2018 C&P Exam. Thus, the Board finds that the first element of secondary service connection, current disability, has been satisfied. Allen, 7 Vet. App. 43 at 448-49. Turning to the second element, whether the Veteran’s acquired psychiatric disorder was caused or aggravated by a service-connected disease or injury, the Board observes that the Veteran is presently service-connected for tinnitus, bilateral shoulder and elbow disabilities, and a low back disability. In a July 2018 statement, S.E.R., the Veteran’s brother, reported that he and his brother served in the military together, and while on active duty service, he noticed that his brother exhibited symptoms of depression resulting from pain in his shoulders and elbows as well as tinnitus. See 07/24/2018 Correspondence; see also VA 21-4138, Statement in Support of Claim. S.E.R. further reported that the Veteran became extremely depressed as he tried to hide the pain from his superiors and subordinates, and was prescribed medication to treat his depression. See id. Likewise, in a July 2018 lay statement, the Veteran’s lifelong friend, T.L.Y., reported that the Veteran takes medication to treat his anxiety and depression and that he has not been the same outgoing person as he was before military service. See 07/24/2018 VA 21-4138, Statement in Support of Claim. At a July 2018 Primary Care – Mental Health Integration Assessment, the Veteran reported experiencing symptoms of anxiety and depression for many years, and was prescribed hydroxyzine to treat these symptoms. See 10/13/2018 CAPRI at 5 and 7. A July 2018 psychiatric diagnostic impression shows diagnoses of uncomplicated bereavement, unspecified anxiety disorder, and somatic symptom disorder, with predominant pain. 08/03/2018 CAPRI at 7. The Veteran was first afforded a VA examination in September 2018 where, as noted above, he was diagnosed with unspecified depressive disorder. See 10/01/2018 C&P Exam at 2. The Veteran reported symptoms of depressed mood, anxiety, and chronic sleep impairment, and reported receiving treatment for his acquired psychiatric disorder, including psychotropic medication, as recently as July 2018. See id. at 5-6. Regarding nexus, the September 2018 VA examiner opined that it is not possible to clearly connect the Veteran’s acquired psychiatric disorder with his service-connected physical health conditions, to include tinnitus and bilateral elbow and shoulder disabilities. See 10/01/2018 C&P Exam at 2. As rationale, the examiner indicated that there was no evidence of recent mental health treatment, and the Veteran had experienced several stressors from 2016-2018, including a house fire and the deaths of his mother and brother. See id. In January 2019, the Veteran submitted a September 2016 VA research bulletin on hearing loss and tinnitus, which included findings that Veterans with tinnitus frequently have anxiety, depression, or both. See 01/15/2019 NOD. The VA bulleting included a citation to a 2015 article from the International Journal of Otolaryngology that suggested certain comorbidity of tinnitus and anxiety and depression. See id. An October 2019 Primary Care – Mental Health Consult, the Veteran was diagnosed with depressive disorder, unspecified anxiety disorder, and unspecified trauma disorder. See 03/27/2020 Medical Treatment Record – Government Facility at 74. A December 2019 Psychiatry Group Counseling Note indicates that the Veteran presented with chronic depression and a current major depressive episode, and contains the opinion that there was a possible biological contribution from pain associated with the Veteran’s service-connected bilateral shoulder and elbow disabilities. See id. at 40-43. Pursuant to the October 2020 Board remand, the Veteran was afforded a VA examination and medical opinion in January 2021. See 01/28/2021 C&P Exam. Regarding nexus, the January 2021 examiner opined that the evidence does not indicate that the Veteran’s acquired psychiatric disorder is less likely than not aggravated beyond its natural progression by his service-connected disabilities. After a careful review of all the lay and medical evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus and bilateral shoulder and elbow disabilities, is warranted. First, the Board finds that the Veteran’s accounts of the onset of his acquired psychiatric disorder appear both competent, credible, and have been consistent throughout the appeal period. See Layno v. Brown, 6 Vet. App. 465 (1994); Caluza v. Brown, 7 Vet. App. 498 (1995). Furthermore, the record contains lay statements from the Veteran’s brother, S.E.R., and lifelong friend, T.L.Y., which both corroborate many of the Veteran’s contentions, including the in-service onset of an acquired psychiatric disorder related to symptoms of pain associated with his service-connected bilateral elbow and shoulder disabilities. Next, the Board acknowledges the September 2018 and January 2021 VA examiners’ negative opinions as to nexus, but finds that both are inadequate, and as such are entitled to minimal probative weight. As noted in the October 2020 Board remand, the September 2018 opinion is inadequate because the examiner failed to address whether the Veteran’s acquired psychiatric disorder was aggravated by his service-connected disabilities or consider the Veteran’s contention that his acquired psychiatric disorder was due to or aggravated by service-connected tinnitus. See 10/29/2020 BVA Decision. Accordingly, the January 2021 VA examiner was instructed to consider whether the Veteran’s acquired psychiatric disorder was aggravated by his service-connected disabilities, and was specifically requested to comment on the September 2016 VA research bulletin on tinnitus submitted by the Veteran. See id. at 7. However, the January 2021 examiner failed to address the September 2016 VA research bulletin as directed by the Board, and the Board therefore finds the opinion to be inadequate and entitled to minimal probative value. Finally, the Board notes that the record contains a medical opinion authored by Dr. P.G., M.D. and attending psychiatrist, who in December 2019 opined that there was a possible biological contribution between the Veteran’s acquired psychiatric disorder, to include chronic depression and major depressive episode, and pain associated with his service-connected bilateral shoulder and elbow disabilities. See 03/27/2020 Medical Treatment Record – Government Facility at 43. Here, the Board finds that Dr. P.G.’s December 2019 opinion shows consideration of the relevant evidence of record, to include the Veteran’s competent and credible reports, and is supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds the Dr. P.G.’s December 2019 positive nexus opinion to be probative and worthy of some weight. In light of the foregoing factors, and after resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder was caused or aggravated by service-connected disabilities, to include bilateral shoulder and elbow disabilities. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board therefore finds that service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral shoulder and elbow disabilities, is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.