Citation Nr: 0811473 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-37 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. Hachey, Associate Counsel INTRODUCTION The veteran served on active duty from August 1942 to October 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (the RO). This case was previously before the Board in August 2007 at which time the case was remanded for the purpose of scheduling the veteran for a Travel Board hearing. Such hearing was conducted before the undersigned Acting Veterans Law Judge at the RO in March 2008. A transcript of the hearing has been associated with the veteran's VA claims folder. The record also reflects that a motion to advance this case on the docket was filed on the on the veteran's behalf by his representative in April 2007. Taking into consideration the veteran's advanced age, his motion for advancement on the docket was granted. See 38 C.F.R. § 20.900(c) (2007). The issues of service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The medical evidence of record supports a diagnosis of PTSD that is related to the veteran's in-service combat experiences. CONCLUSION OF LAW PTSD was incurred as a result of the veteran's active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out the veteran's contention that stressful combat experiences during his World War II service in the Pacific Theatre led him to develop PTSD. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision as to the veteran's service-connection claim for PTSD. I. Duties to notify and assist The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). VCAA notice letters were sent to the veteran regarding his service-connection claim for PTSD in June 2005 and March 2006. The Board need not, however, discuss the sufficiency of either of these letters or VA's development of the case in light of the fact that the Board is granting service connection for PTSD herein. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. Accordingly, the Board will proceed to a decision on the merits as to the veteran's service-connection claim for PTSD. II. Service connection for PTSD Entitlement to service connection for PTSD requires that three elements be present: (1) medical evidence diagnosing PTSD; (2) combat status or credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304(f) (2007); Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD criterion, evidence of in- service stressors, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1) (2007). However, where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other credible evidence which supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The veteran was diagnosed with PTSD on VA psychiatric examination in August 2006. The examiner specifically indicated that the veteran's PTSD was the result of his combat experiences in service. No contrary medical evidence is of record. Elements (1) and (3) of 38 C.F.R. § 3.304(f) have accordingly been satisfied. The key element in this case is element (2) regarding in- service stressors. As noted above, if the evidence establishes that the veteran engaged in combat with the enemy, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f)(1) (2007). Absent a finding of combat status, however, the veteran's stressors must be verified for service connection to be awarded. See Cohen and Moreau, supra. In the instant case, the Board finds that the veteran engaged in combat with the enemy. Verification of his stressors is therefore unnecessary. The veteran contends that he served as an Army construction foreman on Biak Island in the South Pacific during World War II and that he was tasked with constructing an airstrip and accompanying facilities on that island. See Board Hearing Tr. at 4-5. He further maintains that while stationed on Biak, the airstrip he helped build was bombed by the Japanese, resulting in several casualties. He also maintains that his base on Biak was subject to sniper fire, small arms fire, and artillery fire. See Board Hearing Tr. at 5-6; Stressor Statement received in July 2005. The Board finds the veteran's account of the aforementioned stressors to be highly credible. Initially, the Board notes that the veteran's service personnel records are unavailable and appear to have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). When service medical records are lost or missing, VA has a heightened obligation to satisfy the duty to assist and consider the applicability of the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Despite the missing service records in this case, the limited evidence that remains appears to be consistent with the veteran's testimony. The veteran's "Enlisted Record and Report of Separation" reflects that he did indeed serve as a construction foreman in the Army Air Corps. Such duties are congruent with the veteran's testimony that he was involved in airstrip construction during his time in service. The veteran's separation record also indicates that he served in the Philippine Island and Luzon campaigns and received the Philippine Liberation Ribbon, the Asiatic Pacific Theatre Campaign Medal, and the Distinguished United Badge. This evidence not only places the veteran in the area of the Philippines and New Guinea (close to Biak), but also indicates that the veteran would have been in a position to be involved in the fierce battles that took place in that area during the veteran's period of service. Moreover, as the veteran points out, it was not uncommon for airstrips in that area to be bombed or subjected to artillery fire by Japanese forces during the relevant time period. As noted above, this evidence only serves to support the veteran's highly credible testimony. The Board acknowledges that the RO attempted to obtain morning reports for the veteran's unit to verify his stressors. Stressor verification efforts were also made through the Joint Services Records Research Center (JSRRC) (formerly known as the United States Armed Services Center for Research of Unit Records (USASCRUR)). The search for morning reports covered only December 1944. The veteran has indicated, however, that the various stressful events he described took place between May and December1944. See Stressor Statement received in July 2005 (stating that "all this happened @ Biak May 1944-December 1944"). The morning report search was therefore incomplete. Moreover, although the response from JSRRC is cut off so as not to reveal the dates searched, the accompanying request indicated that the stressful events "happened on December 1, 1944." As with the morning reports, the JSRRC search was extremely limited in scope and did not include the full range of dates supplied by the veteran. In any event, because the Board finds the veteran's testimony regarding his in-service stressors to be credible and highly probative, and resolving any remaining doubt in the veteran's favor, combat status is established and stressor verification is unnecessary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f)(1) (2007). The second element of 38 C.F.R. § 3.304(f) has therefore also been established and service connection for PTSD is warranted. The benefit sought on appeal is accordingly granted. ORDER Service connection for PTSD is granted. REMAND The veteran also seeks service connection for bilateral hearing loss and tinnitus. He contends that these conditions are the product of exposure to noise from heavy construction equipment, aircraft engines, artillery fire, small arms fire, and explosions in service. See Board Hearing Tr. at 7, 11. Before the Board can adjudicate these claims, however, additional development in the form of a VA audiological examination is required. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims made clear that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the instant case, there is competent evidence of a current disability, which satisfies the first McLendon element. VA treatment records dated in August 2006 note diagnoses of moderately severe to profound right ear sensorineural hearing loss and mild to moderately severe left ear sensorineural hearing loss. There is also an indication that events in service led to the veteran's current hearing loss and tinnitus, thereby satisfying the second and third McLendon elements. The veteran served as a construction foreman on airstrips in the South Pacific during World War II. As such, he was undoubtedly exposed to loud noise from aircraft and heavy construction equipment. As noted above, the veteran also participated in combat and was exposed to noise from bombings and artillery and small arms fire. See 38 U.S.C.A. § 1154(b) (West 2002). For his part, the veteran has also reported that his hearing loss and tinnitus began in service and have continued to the present time. See Board Hearing Tr. at 7-9. There also appears to be insufficient competent medical evidence on file for VA to make a decision on the claim, thereby satisfying the fourth McLendon element and triggering VA's duty to obtain an examination. The veteran has not been afforded a VA audiological examination to address the relationship between his current hearing loss and his period of active duty. The remainder of the medical evidence of record contains no etiological opinion to fill the gap. Under such circumstances, a VA audiological examination should be conducted on remand and an etiological opinion obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an audiological examination to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to provide results in a numeric format for each of the following frequencies: 500, 1000, 2000, 3000 and 4000 Hertz. The examiner is also asked to provide an average of the above frequencies for each ear, and to provide speech recognition scores for each ear using the Maryland CNC Test. If hearing loss and/or tinnitus is identified, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the veteran's hearing loss and/or tinnitus is related to any incident of military service, including his exposure to loud noise from heavy construction equipment, aircraft engines, artillery fire, small arms fire, and explosions. A report of the examination should be prepared and associated with the veteran's VA claims folder. 2. Thereafter, readjudicate the veteran's service connection claims for bilateral hearing loss and tinnitus. If any of the benefits sought on appeal remain denied, the veteran and his representative should be provided a Supplemental Statement of the Case and given reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until he is contacted. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ LAURA H. ESKENAZI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs