Citation Nr: 0810390 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-03 690A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for chronic tinnitus. 2. Entitlement to service connection for a chronic acquired psychiatric disorder to include major depressive disorder, post-traumatic stress disorder, depression, anxiety, and a sleep disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran had active service from June 1968 to July 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision of the Lincoln, Nebraska, Regional Office (RO) which, in pertinent part, established service connection for chronic right ear hearing loss disability and denied service connection for both chronic tinnitus and a chronic acquired psychiatric disorder to include major depression, depression, anxiety, and sleep problems. In April 2006, the RO denied service connection for chronic post-traumatic stress disorder (PTSD). FINDING OF FACT Chronic tinnitus originated during wartime service. CONCLUSION OF LAW Chronic tinnitus was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In reviewing the veteran's claims for service connection for chronic tinnitus, the Board observes that the RO issued VCAA notices to the veteran in November 2004 and March 2006 which informed him of the evidence needed to support a claim of entitlement to service connection and the assignment of an evaluation and effective date of an initial award of service connection; what actions he needed to undertake; and how the VA would assist him in developing his claim. Such notice effectively informed him of the need to submit any relevant evidence in his possession. The November 2004 VCAA notice was issued prior to the February 2005 rating decision for which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran has been afforded a VA examination for compensation purposes. The examination report is of record. There remains no issue as to the substantial completeness of the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). II. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The veteran's service medical records make no reference to chronic tinnitus. His service personnel records indicate that he served in the Republic of Vietnam and Germany as a tracked vehicle mechanic and a vehicle repairman. Service connection has been established for chronic right ear hearing loss disability secondary to military noise exposure. In his October 2004 Veteran's Application for Compensation or Pension (VA Form 21-526), the veteran advanced that he was exposed to acoustical trauma associated with heavy vehicle engine noise and firing weapons while in Germany and the Republic of Vietnam during active service. He clarified that: Even though I was having trouble with my hearing and tinnitus at that time I did not report the problems, figuring that they would go away with time. Unfortunately, they just got worse. The hearing problems and tinnitus have been a constant source of problems for me. At a January 2005 VA examination for compensation purposes, the veteran complained of chronic tinnitus. In response to the question "state any conditions or circumstances that occurred when you first started having tinnitus that you believe may have caused this condition," the veteran answered "exposure to loud noise in military - artillery and tanks." The veteran indicated that he began having "symptoms of tinnitus" in June 1984. The VA examiner opined that "it is unlikely that the tinnitus is related to Military noise exposure due to the veteran reporting its onset to be 13 years after Military service." In the veteran's notice of disagreement and substantive appeal, the veteran's attorney asserts that: The March 4, 2005 rating decision indicates that the veteran has had tinnitus for the past 13 years. This is incorrect. The veteran reports that he may have had tinnitus since his discharge from service in 1971. He did not become fully aware of the presence of tinnitus until 1984, 13 years after discharge. Then, he was able to become aware of his condition after coming to terms with some alcohol problems. (emphasis in the original). The Board has reviewed the probative evidence of record including the veteran's written statements on appeal. The veteran has been diagnosed with chronic tinnitus. While the examiner at the January 2005 VA examination for compensation purposes found that the veteran's tinnitus was not etiologically related to his wartime service given his subjective history of having initially manifested tinnitus in June 1984, she failed to comment on either the veteran's contemporaneous clarification that "he first started having tinnitus" when he was "exposed to loud noise in military" or his October 2004 claim for service connection in which he related having initially experienced tinnitus during active service. Such omissions lessen the probative value of the VA examiner's opinion. Therefore, the Board finds that the evidence is in relative equipoise as to whether the veteran's chronic tinnitus is etiologically related to his inservice noise exposure. Upon resolution of reasonable doubt in the veteran's favor, the Board concludes that service connection is warranted for chronic tinnitus. ORDER Service connection for chronic tinnitus is granted. REMAND The veteran asserts that service connection for a chronic acquired psychiatric disorder to include major depression and PTSD is warranted as the claimed disabilities were precipitated by his inservice experiences including recovering a submerged M113 personnel carrier in which a crewman drowned in 1970 while attached the 2nd Battalion, 64th Armored, Schweinfurt, Germany and coming under mortar fire at a military facility in Pleiku, Republic of Vietnam, in February 1971 or March 1971. Appropriate action has not been undertaken to verify the veteran's claimed combat and non-combat-related stressors. A December 2004 written statement from Carlton B. Paine, Ph.D., conveys that he had provided psychotherapy to the veteran from July 2001 to September 2004. Clinical documentation of the cited treatment is not of record. The VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). Accordingly, this case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007) are fully met. 2. Then contact the veteran and request that he provide information as to all post-service treatment of his chronic psychiatric disabilities including the names and addresses of all health care providers. Upon receipt of the requested information and the appropriate releases, the RO should contact Carlton B. Paine, Ph.D., and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the claims file. 3. Then request that copies of all VA clinical documentation pertaining to the veteran's treatment after November 2005, not already of record, be forwarded for incorporation into the record. 4. Then submit the veteran's written statements as to his alleged combat-related stressors to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the claimed stressors. 5. Then schedule the veteran for a VA examination for compensation purposes which is sufficiently broad to accurately determine the current nature and severity of his chronic acquired psychiatric disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. If a diagnosis of PTSD is advanced, the examiner should identify the specific stressor or stressors supporting such a diagnosis. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic acquired psychiatric disability originated during active service; is etiologically related to the veteran's inservice combat and non-combat-related experiences; or is in any other way causally related to active service. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 6. Then readjudicate the veteran's entitlement to service connection for a chronic acquired psychiatric disorder to include major depressive disorder, PTSD, depression, anxiety, and a sleep disorder. . If the benefit sought on appeal remains denied, the veteran and his attorney should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs