MAJOR DEPRESSIVE DISORDER

Summary

The Veteran, an Army Veteran who served from August 1972 to August 1974, appeals the denial of service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD). The Veteran also has service-connected hearing loss and tinnitus, granted in a July 2021 rating decision. The appeal focuses on whether the psychiatric disorder is secondary to these service-connected conditions. The Board reviewed the evidence of record at the time of the September 2022 rating decision, including a private medical opinion dated August 2024. This private opinion diagnosed major depressive disorder and opined that it was "more likely than not" related to the Veteran's service-connected hearing loss and tinnitus. The examiner cited the Veteran's ongoing struggles with symptoms like poor concentration, depressed mood, sleep disturbances, and anxiety, consistent with the DSM-5 diagnosis. The Board found this opinion to be sound and probative, establishing a causal link between the psychiatric disorder and the service-connected hearing loss and tinnitus. The Board also noted the Veteran's credible lay testimony. Based on the positive nexus opinion and credible lay evidence, the Board granted service connection for the acquired psychiatric disorder as secondary to the Veteran's service-connected hearing loss and tinnitus, satisfying the criteria under 38 C.F.R. § 3.310.

Rationale

Current diagnosis of major depressive disorder.; Service-connected hearing loss and tinnitus.; Private medical opinion found it more likely than not that the psychiatric disorder is related to service-connected hearing loss and tinnitus.

Full Decision Text

Citation Nr: A26040623
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 221205-301290
DATE: April 30, 2026

ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder.

ORDER

Entitlement to service connection for an acquired psychiatric disorder is GRANTED.

FINDINGS OF FACT

1. The Veteran has a current diagnosis of major depressive disorder.

2. A July 2021 rating decision granted service connection for the Veteran's hearing loss and tinnitus.

3. The Veteran's acquired psychiatric disorder is due to his service-connected hearing loss and tinnitus.

CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder as secondary to service-connected hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the United States Army from August 1972 to August 1974. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2022 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In the December 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the hearing docket. A Board hearing was held on January 16, 2026.

The Board may only consider the evidence of record at the time of the September 2022 RO decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the RO issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this Decision.

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims ("Court") held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. Id.

This appeal is advanced on the docket due to the Veteran's age. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

REASONS AND BASES FOR THE FINDINGS AND CONCLUSION

Legal Criteria-Service Connection

To establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998), superseded by statute, 38 U.S.C. § 5107(a). 

The regulations adopted after, and because of, Allen v. Brown, 7?Vet. App.?439 (1995) (en banc),  provide that service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or?injury.  38?C.F.R. §?3.310(a).? And that secondary service connection may be granted for aggravation of a disease or injury by a service-connected disability. Id. §?3.310(b). 

However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case, and during the pendency of the
The regulations adopted after, and because of, Allen v. Brown, 7?Vet. App.?439 (1995) (en banc),  provide that service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or?injury.  38?C.F.R. §?3.310(a).? And that secondary service connection may be granted for aggravation of a disease or injury by a service-connected disability. Id. §?3.310(b). 

However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case, and during the pendency of the appeal, the law of secondary service connection changed materially.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case and their holding illuminates the Board's way.

In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit held that under the causation standard of section 1110 of Title 38 of the United States Code, secondary service connection is warranted where a nonservice-connected disability would have been less severe "but-for"  a service connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Id. at 1365. 

The Federal Circuit concluded the causation standard "proximately due to" under section 3.310(b) of the regulations is inconsistent with section 1110 of the statute and, therefore "unlawful." 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

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).

In evaluating the probative value of competent medical evidence, the court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Id. § 3.159(a)(2). 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. Id. This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In assessing the credibility and probative weight of all relevant evidence, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau, 492 F.3d at 1376 (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan, 451 F.3d at 1337 (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The court has also held that contemporaneous records are more probative
, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau, 492 F.3d at 1376 (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan, 451 F.3d at 1337 (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The court has also held that contemporaneous records are more probative than history reported by an appellant. See Curry v. Brown, 7 Vet. App. 59, 68 (1994).

While VA has a duty to assist the veteran in developing evidence to support their claim, the veteran ultimately bears the burden of demonstrating his or her entitlement to a particular benefit. 38 U.S.C. § 5107(a) (a claimant has the responsibility to present and support a claim for benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (recognizing that, the responsibilities of developing the evidence aside, the claimant bears the burden of establishing his or her entitlement to the benefits sought); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) (explaining that the evidence must demonstrate entitlement to the benefit).

Analysis

The Veteran contends that he has an acquired psychiatric disorder as a result of his active-duty service, including as secondary to his service-connected hearing loss and tinnitus.

The Board finds that the first and second elements of secondary service connection have been satisfied. An August 2024 private opinion included a diagnosis of major depressive disorder. Further, a July 2021 rating decision included findings that the claimed primary disabilities - hearing loss and tinnitus - are service connected. The Board will not disturb this favorable finding. 38 C.F.R. § 3.104(c). 

Therefore, the appeal turns on the third prong of secondary service connection, medical nexus. On this element, there is only one medical opinion of record.

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008).

In March 2026, the Veteran submitted an August 2024 private examination report, in which the examiner opined "it is more likely than not that [the Veteran] suffers from service-related Major Depressive Disorder due to service-connected hearing loss...and tinnitus." (alterations added). To support this opinion, the examiner stated the following:

Since separating from the military, [the Veteran] has been struggling to cope with the ongoing symptoms stemming from his service-connected hearing loss and tinnitus. These issues have negatively impacted his life and led to symptoms indicative of: poor concentration, inability to stay on task, depressed mood, loss of interest in activities, sleep pattern disturbances, avoidance, forgetfulness, racing thoughts, crying spells, excessive guilt, decreased sex drive, anxiety attacks, fatigue, changes in appetite, and paranoia. These symptoms are consistent with the DSM-5 diagnosis of Major Depressive Disorder (F32.1). (alteration added).

This positive nexus opinion, which related the Veteran's acquired psychiatric disorder to his service-connected hearing loss and tinnitus, used a more stringent analysis than the "but-for" causation analysis required under Spicer. The opinion was further supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens,11 Vet. App. 379 (1998). The Board, therefore, finds that the August 2024 private examiner's opinion is both sound
 consistent with the DSM-5 diagnosis of Major Depressive Disorder (F32.1). (alteration added).

This positive nexus opinion, which related the Veteran's acquired psychiatric disorder to his service-connected hearing loss and tinnitus, used a more stringent analysis than the "but-for" causation analysis required under Spicer. The opinion was further supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens,11 Vet. App. 379 (1998). The Board, therefore, finds that the August 2024 private examiner's opinion is both sound and probative in this case.

Based on the foregoing evidence, the Board finds that the August 2024 private medical opinion, alongside the Veteran's credible lay testimony, persuasively establishes that the Veteran's acquired psychiatric disorder is causally linked to his already service-connected hearing loss and tinnitus. Thus, the Veteran meets the criteria for secondary service connection, and the appeal is granted. 38 CFR § 3.310.

 

 

STEVEN V. ADLER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.P. Blackburn

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.