Citation Nr: 21031349 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-36 963 DATE: May 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, including persistent depressive disorder, to include as due to service-connected attention deficit hyperactivity disorder (ADHD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1974 to October 1975. He passed away in December 2016. The Appellant, his surviving spouse, as been substituted as the claimant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the matter last appeared before the Board in December 2018, at which time the issues were remanded for further development. 1. Entitlement to service connection for bilateral hearing loss is remanded. In this case, the current medical evidence of record reflects that the earliest report of hearing loss occurred in July 2013. Illustratively, a July 2013 VA medical center (VAMC) treatment record reflects the Veteran's complaint of hearing loss and tinnitus and report that constant tinnitus on both ears began in military service. The Veteran filed his intent to file a claim shortly thereafter in October 2013. However, in an October 2014 Statement in Support of Claim, the Veteran stated that while in service, he was subjected to loud noises, of weapons fire, explosion, machine guns, dynamite, recalled suffering from muffed hearing and ringing in his ears and noticed a decrease in his hearing from that time. He stated that he sought treatment for his hearing beginning middle to late 1970's and continuously sought treatment since. The Board notes the medical record of evidence is void of treatment records post service until June 2006. The Veteran's Certificate of Release or Discharge (DD-214) reflects that his primary specialty was motor vehicle operator. The Board further notes that the Veteran underwent a VA examination in April 2015. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that she cannot determine a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The examiner noted that hearing loss did not exist prior to service and that there was no audiometric testing performed at the time of separation. The examiner indicated that without an examination at or near the time of separation, there is no way to know the origin of the Veteran's hearing loss without speculating. In his July 2015 Notice of Disagreement (NOD), the Veteran argued that the examiners rationale should not consider the absence of evidence as substantive negative evidence and his lay statements regarding his ongoing symptoms cannot be rejected merely for the lack of corroborating contemporary medical evidence. He stated that he was presumed sound at enlistment, and he has in service noise exposure through weapons and explosion consistent with his service. In his July 2016 formal appeal to the Board, the Veteran contended that his noise exposure has been significant enough to link his tinnitus to his in-service noise exposure. The Board notes that when symptoms are capable of lay observation, a layman can be competent to testify about a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board must determine whether the disability is one concerning which lay statements may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran was diagnosed with sensorineural hearing loss. Determining the etiology of the Veteran's bilateral sensorineural hearing loss requires medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the skills, medical training, or experience needed to determine the etiology of bilateral hearing loss. As such, the Veteran's statements are not competent to diagnose bilateral sensorineural hearing loss in service or within a presumptive period or to provide a nexus opinion in this case. Id. Nonetheless, the April 2015 examiner's rationalization does not reflect that adequate consideration was afforded to the Veteran's service nor his lay statements. In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154. Further, 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). Most of the probative value of a medical opinion comes from its reasoning. Id. Thus, in this case, but for noting that there was no audiometric testing performed at the time of separation, the Board finds that the April 2015 examiner did not address any of the evidence of record, whether medical or lay and the examination is thus inadequate. As VA is obligated to provide an adequate examination, when an examination is provided, remand is warranted to obtain an adequate opinion in light of the April 2015 examination not addressing any of the evidence of record. 2. Entitlement to service connection for an acquired psychiatric disorder, including persistent depressive disorder, to include as due to service-connected ADHD, is remanded. Although a secondary service connection addendum opinion was obtained in May 2019, the same VA examiner that provided the prior March 2015 VA opinion opined that it is less likely than not that a psychiatric disability was either caused by or the result of his service-connected ADHD. The examiner rationalized that review of records since the last examination does not reveal evidence to change the opinion and 2008 private medical records attribute the Veteran's depression to a major accident some time ago. The examiner further opined it is less likely than not a psychiatric disability other than ADHD was permanently aggravated beyond normal progression by his service-connected ADHD and rationalized that review of the records does not find association between any other psychiatric disorder and ADHD. In reviewing the prior March 2015 examination, the Board notes that the examiner opined that the Veteran's symptoms of persistent depressive disorder appear to have later onset, first requiring treatment in 2006 and therefore are less likely than not attributable to military service. He further remarked that ADHD represented a pre-existing condition. However, upon review of the evidence, the Veteran was presumed sound upon entry into service, which was not legally rebutted. As such, the Board finds that in providing the May 2019 opinion, the examiner relied on the March 2015 opinion, of which the foundation was factually inadequate. Moreover, he further provided no rationalization to explain why a 2008 private medical record attributing depression to a major accident some time ago was sufficient to conclude that the Veteran's acquired psychiatric disorder was not proximately due to or caused by his service or service connected ADHD. The Board further finds that in his May 2019 addendum opinion, although the examiner noted that the Veteran received psychiatric care on two occasions between the index examination in 2015 and his death in December 2016, the examiners March 2015 direct service opinion is inadequate. In that March 2015 opinion, the examiner only provided the rationalization that the Veteran's symptoms onset began in 2006 but failed to address the Veteran's service and lay statements. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez, 22 Vet. App. at 304. As such, the Board finds the opinions inadequate, and remand is warranted to obtain adequate opinions. The matters are REMANDED for the following action: 1. Forward the claims file to a clinician with the appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and etiology of the Veteran's bilateral hearing loss. The examiner is asked to: A. Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss was caused by his service. The examiner is asked to directly address the complete medical history, including his service, post-service medical records, and the lay statements of record. A complete rationale for all opinions is required. 2. Forward the claims file to a clinician with the appropriate expertise, who has not previously provided an opinion in this matter, to determine the nature and etiology of the Veteran's acquired psychiatric disability, to include persistent depressive disorder. The examiner is asked to: A. Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability, to include persistent depressive disorder, was caused by his service. B. Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disability, to include persistent depressive disorder, was either (i) caused or (ii) aggravated by his service-connected ADHD. The examiner is asked to directly address the complete medical history, including his service, post-service medical records, and the lay statements of record. A complete rationale for all opinions is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.