Citation Nr: 21040830 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-01 996 DATE: July 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, as secondary to tinnitus is granted. REMANDED Entitlement to service connection for erectile disfunction (ED) as secondary to medication taken for an acquired psychiatric disorder, is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder, to include anxiety and depression, was aggravated beyond its normal progression by service-connected tinnitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for aggravation of an acquired psychiatric disorder beyond its normal progression, to include anxiety and depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1979 to March 1983. This matter comes before the Board of Veteran's Appeals (Board) from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic record. These matters were previously before the Board in July 2018 and March 2020 when the claims were remanded for further development. The Board finds the March 2020 directives have been substantially complied with, and the matters are appropriate for further adjudicative action before the Board. Stegall v. West, 11 Vet. App. 268, 270-271 (1998). In July 2018, the Board recharacterized the Veteran's claim for adjustment disorder to the claim stated in the Order to better reflect the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, as secondary to tinnitus, vertigo, or bilateral hearing loss The Veteran contends that his acquired psychiatric disorder, diagnosed as anxiety and depression, is secondary to his service-connected tinnitus. After a review of the relevant evidence, the Board agrees. VA treatment records reflect that In March 2012, the Veteran transferred his care to a new VA due to a move and he had a negative depression screen. In December 2013, the reported feeling depressed and was unable to sleep due to tinnitus. In April and July 2014, the Veteran was seen at the VA for a history of depression and tinnitus, with the sound like a fire alarm, that had been getting worse for the past 3 years. After a November 2014 VA examination, the Veteran was diagnosed with strong tinnitus and was awarded service connection for tinnitus effective January 2013. Therefore, the dispositive issue is whether there is a causal relationship between the Veteran's acquired psychiatric disorder and his service-connected tinnitus. The November 2014 VA audiological examination characterized the Veteran's bilateral tinnitus as "strong" and "constant." In his December 2014 Notice of Disagreement, the Veteran noted the noise of "crickets" in his ears intensified with his move to the country. The intensified tinnitus caused him anxiety and panic attacks 3 to 4 times per week. In his December 2017 hearing testimony, the Veteran provided competent and credible lay statements of having tinnitus since his separation from active service. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374. Moreover, the Veteran is competent to report that he first sought treatment for psychiatric symptoms in late 2013. He indicated that his effort to move to the country backfired as it was so quiet that his tinnitus became more prominent and was like "Chinese water torture." He went to the emergency department for his depressive symptoms at least 5 times and called the crisis hotline at least 25 times. The Veteran also provided numerous articles from several professional journals citing a strong relationship between severe tinnitus and anxiety and depression. After the hearing he provided the full text of an article from the International Journal of Otolaryngology, The Correlation of the Tinnitus Handicap Inventory with Depression and Anxiety in Veterans with Tinnitus, (November 2015) which indicates that up to 77% of the tinnitus population may present with psychiatric comorbidities, most often anxious and depressive symptoms. In August 2018 the Veteran submitted a statement indicating that after moving to the country in March 2012 his tinnitus caused him sleep deprivation noting that "my crickets turned into the sound of a fire-alarm." In September 2019, the Veteran was seen by a private psychiatrist who conducted a psychiatric interview and examination of the Veteran including a review of relevant VA treatment records regarding the diagnosis and treatment of the Veteran's tinnitus. He noted that the Veteran quit work in 2011 due to his medical problems. The psychiatrist concluded that the Veteran's anxiety and insomnia was "related to" his tinnitus caused from his time in service. The private psychiatrist's extended handwritten note is not entirely legible and does not include an extensive rationale for this conclusion, however reading the opinion as a whole and in the context of the evidence of record, it is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). VA mental health treatment records reflect September and October 2020 visits in which the Veteran indicated that he had suffered with low mood for close to 40 years and his depression was reported at a 6/10 level. In October 2020, a records review and telehealth interview were conducted by a VA psychologist to determine whether there was causation or aggravation of the Veteran's acquired psychiatric disorder by the Veteran's tinnitus or other physical conditions. The examiner stated that there was no clear or direct evidence in the treatment records provided or via the Veteran's self-report that linked the Veteran's current depression to any physical health condition, or specifically to his tinnitus. Further, the examiner psychologist noted that the Veteran's acquired psychiatric disorder is recurrent and by its very nature subject to ebbs and flows. The examiner concluded that the Veteran's acquired psychiatric disorder was not proximately due to or aggravated beyond its natural progression by tinnitus or any of the Veteran's physical disabilities. There are conflicting medical opinions regarding causation or aggravation of the Veteran's acquired psychiatric disorder by his tinnitus. The opinion of VA examiner is of somewhat lesser probative value as he did not consider the Veteran's hearing testimony and lay statement regarding the onset of an aggravation of his tinnitus and his acquired psychiatric disorder, or the conflicting medical opinion provided by the Veteran's private psychiatrist. It is notable that the Veteran admitted in recent mental health visits that he had experienced a low mood for close to 40 years which is a time period that encompasses his time in service. More importantly, the Veteran is in receipt of service connection for tinnitus that has also been apparent to the Veteran since service. The Veteran provided a competent lay statement that beginning in 2013 his tinnitus along with the symptoms of his acquired psychiatric disorder worsened significantly. See Jandreau, 492 F. 3d at 1374. This is consistent with the Veteran's seeking medical treatment for his long-standing tinnitus, which providers have characterized as strong, and for his acquired psychiatric disorder in December 2013 for the first time. Caluza, 7 Vet. App at 511. Taken together, the probative value of the Veteran's credible lay testimony and lay statement, numerous peer-reviewed articles in the medical literature regarding the strong association between anxiety and depression with severe tinnitus, VA treatment records, and a positive nexus opinion of a private psychiatrist must be balanced against the probative value of the negative nexus opinion of the VA psychologist examiner. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder was aggravated beyond its natural progression from December 11, 2013 forward by his service-connected tinnitus. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for aggravation of the Veteran's acquired psychiatric disorder by tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for erectile disfunction (ED) as secondary to medication taken for a service-connected disability The Veteran contends that his erectile dysfunction is caused by medications taken for his service-connected disabilities. The Veteran was diagnosed with erectile dysfunction in 2012. In August 2018 the Veteran submitted a statement with a copy of the package insert for Trazodone HCL, an antidepressant which included change in sexual ability in the side effect profile. He insisted that he had a regular sex life prior to his psychiatric disorder and that medication prescribed to treat it caused decreased libido and ejaculation failure. The Veteran further stated that prescriptions for Viagra do not address his lack of a libido. In August 2019 the Veteran's statement clarified his belief that medications prescribed for his acquired psychiatric disorder cause erectile dysfunction. He indicated that the dosages of the medications have been changed frequently over the years. In March 2021 the VA examiner provided a negative medical nexus opinion for the Veteran's ED as secondary to his then service-connected conditions of benign positional vertigo, tinnitus, and bilateral hearing loss. With this decision, the Veteran is now service-connected for an acquired psychiatric disorder. Accordingly, the opinion provided by the examiner in March is inadequate for adjudication purposes as it does not address secondary service connection due to an acquired psychiatric disability. Thus, remand is necessary for a medical opinion as to whether the Veteran's ED is caused by or aggravated beyond its natural progression by his acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records and responses received must be associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination with a urologist or other appropriate provider to determine a. whether it is more likely than not (50 percent or greater probability) that the Veteran's ED was caused by his acquired psychiatric disorder or, b. whether it is more likely than not (50 percent or greater probability) that the Veteran's ED was aggravated beyond its normal progression by his acquired psychiatric disorder. In formulating his or her opinions, the examiner should be mindful of the Veteran's lay statements. If any lay statement is discounted or disregarding the examiner should provide a brief explanation. A complete rationale should be provided for each opinion provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) in his or her conclusion.. The term "at least as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Readjudicate the Veteran's claim of ED as secondary to acquired psychiatric disorder. If the benefit requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.