Citation Nr: A22000524
Decision Date: 01/13/22 Archive Date: 01/13/22
DOCKET NO. 210920-186626
DATE: January 13, 2022
ORDER
Entitlement to service connection for major depressive disorder (MDD) as secondary to bilateral hearing loss or tinnitus is granted.
Entitlement to service connection for dementia as secondary to bilateral hearing loss or tinnitus is granted.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran's favor, the Veteran's MDD has been caused or aggravated by tinnitus or hearing loss.
2. Resolving reasonable doubt in the Veteran's favor, the Veteran's dementia has been caused or aggravated by tinnitus or hearing loss.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for MDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.
2. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for dementia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had honorable active service with the United States Army from August 1954 to July 1957.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appeals Modernization Act, (AMA), applies to the Veteran's claims.
In September 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), electing the Evidence Submission option. At the time the Veteran filed their NOD, they also filed a medical opinion provided by a private provider. This private opinion, as well as other documents like the brief supplied by the Veteran's representative have been received within 90 days of the receipt of the NOD. This evidence has been considered before the claims have been adjudicated. 38 C.F.R. § 20.303.
Service Connection
Generally, a disability, with no causal relationship ("nexus") to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R. §3.310(a)-(b). To establish secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a link ("nexus") between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Board notes that a non-service-connected disability proximally caused by a service-connected disability is considered part of the original condition. See 38 § C.F.R. §3.310(a). A disability which is aggravated by a service-connected disease or injury, is compensated to the degree of the increase of severity. See 38 C.F.R. § 3.310(b); and see Allen v. Brown, 7 Vet. App. 439 (1995).
In this case, the Board has reviewed all the evidence of record, 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). Hence, 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 on appeal.
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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
1. Entitlement to service connection for MDD as secondary to bilateral hearing loss or tinnitus is granted.
See section 2 below.
2. Entitlement to service connection for dementia as secondary to bilateral hearing loss or tinnitus is granted.
When resolving reasonable doubt in the Veteran's favor, the Board finds that secondary service connection is reasonably supported for MDD and dementia due to service-connected hearing loss and tinnitus.
First, the Veteran has a current disability of MDD and dementia. See C&P Exam received October 2019. Therefore, the Veteran has a current disability and meets the first prong of the secondary service connection test.
Next, the Veteran's bilateral hearing loss and bilateral tinnitus are both service-connected impairments since February 2019. Therefore, the Veteran meets the second prong of the secondary service connection test by showing a service-connected disability.
Lastly, the Board considers whether the evidence supports a link ("nexus") between the service-connected disabilities and the current disabilities.
In particular, the Veteran provided a private opinion in support of a connection between MDD and dementia and the Veteran's service-connected impairments of hearing loss and tinnitus. See Medical Treatment Record Non-Government Facility received September 2021. The private opinion was provided by a specialist in internal medicine and neurology. The doctor provided a detailed report of their assessment of the records, discussed some relevant research articles, supported their opinions with a detailed rationale, and noted deficiencies in the VA opinions.
While VA opinions were obtained as to both MDD, and dementia, the Board finds that these opinions were inadequate. For example, in early October 2020, the examiner stated that the claimed condition, dementia, was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner referred to some articles, stating that hearing loss is a significant factor for developing dementia. The examiner went on saying that she could not claim that the Veteran's hearing loss was at least 50 percent the cause of the Veteran's dementia, but that a more probable estimation was about 20 to 30 percent. The examiner failed to provide any opinion as to aggravation. See C&P Exam received October 2020.
The October 2020 examiner's rationale does not explain why a link between hearing loss and dementia is not supported. In the opposite, the opinion appears to support a link between dementia and the Veteran's service-connected hearing loss, as the examiner stated that hearing loss was a significant risk factor in developing dementia. Additionally, the examiner failed to address whether the Veteran's hearing loss had aggravated his dementia. Id.
Later in October 2020, the RO attained an addendum opinion to address whether dementia could be secondary to tinnitus. The examiner opined that they could not claim that tinnitus was at least 50 percent the cause of dementia, but that a 20 to 30 percent estimation would be more probable. Again, this opinion fails to explain why a link between tinnitus and dementia is not supported. Moreover, the examiner appeared to misunderstand the proper inquiry. Additionally, the opinion failed to address whether the Veteran's tinnitus could have aggravated his dementia. Id.
The Board also noted that the October 2020 examiner stated that tinnitus could cause mental fatigue, exhaustion, depression, and trouble sleeping, suggesting a link between tinnitus and MDD. Id.
Resolving any reasonable doubt in favor of the Veteran, the Board finds that a link between the Veteran's dementia, and MDD and the Veteran's service-connected impairments has been established. Accordingly, the Veteran's claim for service connection for MDD and dementia is granted.
B. MULLINS
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board Associate Counsel, C. Parnell
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.