Citation Nr: 21024120 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-24 809 DATE: April 22, 2021 ORDER Service connection for an acquired psychiatric disorder, as secondary to service-connected bilateral hearing loss and tinnitus, is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD), is remanded. FINDING OF FACT An acquired psychiatric disorder is not caused or aggravated by service-connected bilateral hearing loss and/or tinnitus. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, as secondary to bilateral hearing loss and/or tinnitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to February 1978, and January 1979 to September 2, 1984, with additional service in the Army National Guard. While he has a subsequent period of active duty from September 3, 1984, to July 14, 1989, such has been determined to be dishonorable for Department of Veterans Affairs (VA) purposes and, therefore, a bar to VA benefits. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2016 and July 2016 by a VA Regional Office. In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2020, the Board remanded the claims for additional development and they now return for further appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to service-connected bilateral hearing loss and/or tinnitus. As an initial matter, the Board notes that the Veteran does not contend, and the evidence does not show, that an acquired psychiatric disorder had its onset in, or is directly related to any aspect of his military service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to such disorder, and such did not manifest for many years after service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered “all possible” substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, he has advanced the narrow theory that his acquired psychiatric disorder is caused or aggravated by his service-connected bilateral hearing loss and tinnitus. In this regard, at the October 2019 Board hearing, he reported that, at times during conversations, he had to continuously ask individuals to repeat themselves, which was embarrassing and impacted him emotionally. In this regard, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). A review of the record reveals that the Veteran has a current diagnosis of an acquired psychiatric disorder, characterized as unspecified depressive disorder, as reflected at a June 2016 VA examination. Furthermore, he is service-connected for bilateral hearing loss and tinnitus. Thus, the remaining inquiry is whether such service-connected disabilities caused or aggravated the Veteran’s unspecified disorder. In this regard, following a review of the record, an interview with the Veteran, and a psychiatric evaluation, the June 2016 VA examiner opined that his unspecified depressive disorder was less likely than not proximately due to or the result of his service-connected disabilities. In this regard, he reported that the Veteran’s depression was related to multiple medical issues, to include his hearing loss, but found that such disorder appeared to have a very minor overall impact on his depression. Rather, the examiner determined that it appeared that the Veteran’s chronic medical problems, including chronic pain management problems, history of cerebrovascular accident (CVA), past legal problems while in service (which the Board notes pertains to his period of service deemed dishonorable for VA purposes), and current life circumstances, played the predominant role in his depression. He also found that a review of the medical record did not support a nexus of depression secondary to hearing loss. In April 2020, another VA examiner reviewed the record and opined that the Veteran’s unspecified depressive disorder is less likely than not aggravated by or caused by his bilateral hearing loss and/or tinnitus. In this regard, he noted that the Veteran’s mental health treatment began about four years prior to the June 2016 VA examination, and neither such records nor the examination report mentioned his hearing loss and/or tinnitus as a factor with regard to his mental health diagnosis. Thus, the examiner concluded that, while the Veteran reported that, at times during conversations, he had to continuously ask individuals to repeat themselves, which was embarrassing and impacted him emotionally, such was otherwise unsupported in the record. Consequently, he found that the only conclusion that could be reached was that the Veteran’s depression was less likely than not caused or aggravated by his bilateral hearing loss and/or tinnitus. The Board affords great probative weight to the June 2016 and April 2020 VA examiners’ opinions as such considered all the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided complete rationales for the opinions offered, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. Furthermore, while the Veteran is competent to report how his bilateral hearing loss and tinnitus affect him, he, as a lay person, does not have the requisite training and experience necessary to address the complex medical matter involving the etiology of his acquired psychiatric disorder, to include whether such is caused or aggravated by his bilateral hearing loss and/or tinnitus. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). In this regard, the etiology of such disorder involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his acquired psychiatric disorder is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that the Veteran’s acquired psychiatric disorder is not caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. Therefore, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder, such doctrine is inapplicable and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for right knee disorder. 3. Entitlement to service connection for stomach disorder, to include GERD. As noted in the March 2020 Board remand, the Veteran claims that his current right knee disorder and stomach disorder, which has been diagnosed as GERD, is related to his military service. In this regard, he testified at the October 2019 Board hearing that he injured his right knee when inside an APC where he was attempting to mount a radio, but it fell on top of him and pushed him against the hatch of the door to the APC. Additionally, he reported that his duties requiring him to lift and move generators, pick up tent bags, and dig holes resulted in such disorder. As pertinent to his currently diagnosed GERD, the Veteran testified that such had its onset during basic training as he had less than five minutes to eat his meals. In light of the current diagnoses of right patellar tendon rupture and GERD, the Veteran’s report of an in-service right knee injury consistent with his military occupational specialty (MOS) as a Voice Radio Operator, and his report of the onset of right knee and stomach symptomatology during service, the Board remanded the claims in March 2020 in order to afford the Veteran VA examinations so as to determine the nature and etiology of such claimed disorders. Accordingly, in October 2020, the Veteran was afforded VA examinations, at which time he was diagnosed with right knee strain and GERD; however, the examiner opined that such disorders were less likely than not incurred in or caused by the claimed in-service injury event or illness. As rationale, he stated that there was no record of a right knee disorder or GERD, or complaints thereof, during service and, thus, no nexus can be established. However, the Board finds a remand necessary in order to obtain addendum opinions addressing the etiology of the Veteran’s right knee disorder and GERD as the October 2020 VA examiner relied primarily on the lack of in-service treatment for the claimed disorders in offering the unfavorable opinions, which is problematic in light of the Veteran’s October 2019 testimony that he rarely went to Sick Call due to the stigma associated with doing so, and instead he suffered through his symptoms. Furthermore, he did not consider the Veteran’s reports regarding the onset of symptoms during service that continued thereafter, or address the etiology of his right patellar tendon rupture. Accordingly, the Board finds a remand necessary to obtain addendum opinions that address such concerns. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to VA examiner that performed the October 2020 examinations of the Veteran’s right knee disorder and GERD. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a full review of the record, the examiner should address the following inquiries: Right Knee Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current right knee disorders, diagnosed as patellar tendon rupture and knee strain, had their onset during, or are otherwise related to, his military service, to include as due to the aforementioned incident while in an APC, and/or lifting and moving a generator, picking up tent bags, and digging holes? In offering the foregoing opinion, the examiner should take into consideration all of the evidence of record, to include the Veteran’s service treatment records, post-service treatment records detailing a right patellar tendon rupture following a fall in December 2012, and lay statements from the Veteran concerning the onset and continuity of symptomatology, to include his report that he rarely went to Sick Call during service due to the stigma associated with doing so. GERD Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed GERD had its onset during, or is otherwise related to, his military service, to include having to eat meals within five minutes? In offering the foregoing opinion, the examiner should take into consideration all of the evidence of record, to include the Veteran’s service treatment records, post-service treatment records reflecting a diagnosis of GERD, and lay statements from the Veteran concerning the onset and continuity of symptomatology, to include his reports that he rarely went to Sick Call during service due to the stigma associated with doing so. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to a right knee disorder or GERD, or any complaints thereof. The examiner is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.