Citation Nr: 21029728 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-33 259 DATE: May 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, his acquired psychiatric disorder, to include depressive disorder, is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in relevant part, continued a previous denial of service connection for an acquired psychiatric disorder, which was issued in May 2013 and was not subsequently appealed. In an October 2018 decision, the Board denied service connection for an acquired psychiatric disorder. In December 2018, the Veteran submitted a motion to reconsider, arguing that the Board failed to consider additional evidence presented by the Veteran. A June 10, 2019 decision vacated the December 2018 denial. However, a subsequent Board decision on June 18, 2019 vacated both the December 2018 and previous June 2019 decisions. Because the May 2013 rating decision was not appealed and became final, and another claim was subsequently filed for the same disability, the Board was required to make a finding of new and material evidence in order to reopen and adjudicate the claim. Neither the October 2018 nor the first June 2019 decision included such a finding. In addition, the Board agreed that the October 2018 decision did not contemplate the additional evidence presented by the Veteran. Therefore, the Board vacated both decisions. The Board found that the evidence submitted by the Veteran was new and material, and it reopened the service connection claim and remanded the issue for an additional VA medical opinion. This matter came before the Board again in January 2020, and the Board denied the claim of service connection. The Veteran appealed his case to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a joint motion for remand (JMR) in November 2020. In the JMR, both parties agreed that the Board inappropriately discounted an October 2019 private medical opinion submitted by the Veteran and that the June 2019 decision did not adequately address service connection on a secondary basis. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran was diagnosed with an unspecified depressive disorder in May 2013. Thus, a current disability has been shown by the record. He contends that his psychiatric disorder was incurred in, or is otherwise related to, his service, to include as secondary to service-connected hemorrhoids and bilateral tinnitus. The service treatment records do not indicate any complaints of, or treatment for, a psychological disorder while in service. However, a February 1980 treatment note states that he "appears to be of a nervous nature." A VA examination was conducted in January 2015, in which the examiner indicated that the Veteran's psychiatric disorder is less likely than not related to his service. In support of her opinion, the examiner stated that multiple factors contribute to the Veteran's depression and there is insufficient evidence establishing hemorrhoids as the proximate cause of his depression. She pointed out the lack of medical literature suggesting a relationship between hemorrhoids and psychological disorders. During the examination, the Veteran attributed the dissolution of a long-term relationship and resulting grief to his hemorrhoids. He stated that his then-girlfriend reacted poorly when she saw a pool of blood in the toilet and subsequently started becoming less affectionate toward him, eventually leading to the end of the relationship. He told the examiner that he was still healing from the breakup and his awareness of his problems has made it easier to deal with them. The examiner attributed his depression to the end of the relationship, traumatic events during childhood, and other life stressors, rather than his stated concerns over his hemorrhoids. She also stated that the evidence is insufficient to support a grant of service connection based on aggravation. An addendum opinion was issued in July 2019, wherein another VA examiner opined that the Veteran's depressive disorder is less likely than not related to service. The examiner stated that the record contains no evidence of psychiatric symptoms from his separation from service in 1982 until 2013 or 2014, around the time he filed his first service connection claim for a psychiatric disability. She also stated that the low disability ratings assigned to his tinnitus and hemorrhoids, 10 percent and 20 percent, respectively, indicate that his disabilities are only minimally disabling and do not cause significant impairment. She said that the Veteran did not report a sense of loss or limitation from his service-connected disabilities, which would suggest that his psychiatric complaints are related to physical limitations from his service-connected disabilities. The Veteran submitted a private medical opinion from H.H.-G., Ph.D., HSPP, in May 2018. Dr. H.-G. stated that his depression more likely than not began during service, has continued uninterrupted to the present, and has been aggravated by his service-connected hemorrhoids and tinnitus. She indicated that the Veteran believes that he was held back from promotions and assigned extra duties during service due to discrimination. He indicated that he felt he did not fit in in the military, began drinking excessively, felt he was losing control, and was made to go to Alcoholics Anonymous (AA) meetings while in service. Dr. H.-G. cited to medical literature showing a connection between physical disabilities and mental health symptoms, including a study finding a high prevalence of anxiety and depression in tinnitus sufferers. Additionally, her opinion points to medical literature detailing the relationship between mental health symptoms in servicemembers and feelings of guilt and disillusionment associated with their service identities. The Veteran submitted another private medical opinion in October 2019, from K.G., Ph.D., in which Dr. G. opined that his psychiatric disorder is more likely than not related to service. The Veteran told Dr. G. that he was in a tank accident during service, in which he hit his head against a pole. His service treatment records corroborate this, as they show treatment in March 1982. That accident, the Veteran told her, "started a chain reaction: headaches, high blood pressure, and me drinking like a fish." He indicated that he felt anxious, down, and restless after the accident, and he began drinking heavily to cope with his feelings. Dr. G. stated that the stigma around mental health treatment creates a barrier to service members in need of psychiatric treatment, often causing them to resort to maladaptive psychological numbing strategies, such as alcohol abuse. She additionally pointed out that the Veteran's drinking advanced to such a level that he was sent to AA meetings while in service. She opined that the tank accident and resulting physical, neurological, and psychological sequelae contributed significantly to the development of depression. The Veteran told Dr. G. that he began experiencing rectal bleeding while in service, but he did not know that it could have been a sign of hemorrhoids and was too embarrassed to seek treatment during service. Dr. G. stated that his psychological preoccupation with his hemorrhoid problem is not without a basis, as his disability has resulted in multiple doctor visits, surgeries, and failed interventions. His VA treatment records support this, as his hemorrhoid problems have been the focus of several therapy sessions. The Veteran described to Dr. G., as he did to the January 2015 examiner, his ex-girlfriend's emotional withdrawal after seeing his blood in the toilet, stating that her betrayal has made him distrustful of others. He also indicated that his hemorrhoids have prevented him from establishing new intimate relationships. Dr. G. opined that his depression more likely than not began during service and has been aggravated by his service-connected hemorrhoids and tinnitus. The Veteran also submitted a statement from his cousin, S.S., in which she described observed changes in his mood and behavior during and after service. Ms. S. wrote that she has known the Veteran since they were children. She stated that he was fun, happy, and outgoing during childhood. She first became concerned about the Veteran's mental health when she spoke to him on the phone while he was in service. She stated that, in contrast to his usual talkative and outgoing nature, the Veteran had very little to talk about while in service. After his separation, Ms. S. noticed that the Veteran had bad anxiety and became distant, hateful, negative, unmotivated, and self-isolating. She stated that he rarely leaves the house or does much of anything. She also indicated that he was in a wreck during service that resulted in physical limitations which she believes contributed to his depression. After considering all relevant evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the record supports the finding that his depressive disorder is more likely than not related to his service. Although he experienced traumatic events during his childhood, there is no evidence indicating that he was diagnosed with a psychiatric disorder before entering service and his entrance examination was clinically normal. Thus, he is presumed to have been in sound condition upon entry into service. See 38 C.F.R. § 3.304. While he did not receive a diagnosis or treatment for a psychiatric disorder during service, the lay statements and medical evidence of record indicate that his depressive disorder more likely than not began during service. Taken together, the Veteran's belief that he experienced discrimination in service, evidence of his tank accident, his statements regarding his alcoholism in service, his court martial for an alcohol-related fight, his referral to AA in service, and Ms. S.'s statements describing his demeanor during and immediately after service show that a mental health disorder more likely than not developed during service. This evidence is sufficient to support a grant of service connection on a direct basis. Additionally, there is evidence supporting a grant of service connection as secondary to the Veteran's service-connected hemorrhoids and tinnitus. To this end, he has attributed his depression to his physical disabilities on several occasions, since at least as early as July 2013. The medical literature submitted by the Veteran supports a relationship between physical disabilities and psychiatric disorders. One article describes a causal relationship between tinnitus and anxiety and depression and, while no evidence of record directly links hemorrhoids to those disorders, another article describes the reciprocal relationship between physical pain and depression. The Board assigns more weight to the May 2018 and October 2019 private medical opinions than to the January 2015 VA examination and July 2019 addendum opinion because the totality of the evidence more supports the opinions by the private examiners. In light of the above evidence, the Board finds that service connection for depressive disorder is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.