Citation Nr: 0824233 Decision Date: 07/21/08 Archive Date: 07/30/08 DOCKET NO. 05-33 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for Meniere's disease with hearing loss and tinnitus, on a direct basis and as secondary to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from June 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from September 2004 and January 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. This appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND With respect to the claim for service connection for Meniere's disease, including hearing loss and tinnitus, on a direct basis and as secondary to service-connected disability, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran essentially contends that his current Meniere's disease is the result of an in-service incident in which a Vietnamese person assigned to his unit struck him in the head with an entrenching tool. In support of this assertion is a statement from a fellow service member who acknowledged that he did not witness the incident but was told by the veteran and other service members about the incident shortly thereafter. The veteran and his fellow service member have provided credible evidence regarding the incurrence of the injury, and the veteran is competent to comment as to the incurrence of the injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (noting that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). The record shows that the veteran has a current diagnosis of Meniere's disease, and a private medical record notes that trauma could have caused Meniere's disease. On remand, the veteran should be afforded an examination to determine the nature, extent, and etiology of his current Meniere's disease, to include consideration of his statements as to a head injury in service. Additionally, the veteran claims service connection for Meniere's as secondary to service-connected disability. When aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). The Board acknowledges that the veteran currently has no service-connected disabilities. However, he maintains that his Meniere's disease is due to his PTSD, a disability which is also presently on appeal. Thus, at the examination conducted pursuant to this Remand, the examiner should also address whether the veteran's Meniere's disease was permanently worsened or was aggravated as a result of his PTSD. (Any such favorable opinion that the examiner may provide would be pertinent to the veteran's Meniere's claim if service connection were found to be warranted for PTSD.) Further review of the claims folder indicates that the veteran's PTSD claim has been denied on the basis that his alleged stressors have not been verified. He has cited to numerous in-service stressors, including an altercation in which a Vietnamese person hit him in the head with an entrenching tool as cited above. On his form for PTSD information received in May 2004, the veteran recalled that sometime in June or August 1970 between Da Nang and the Viking compound in Vietnam while assigned to the 263rd Maintenance company he was riding in a mail truck when a couple of Vietnamese people tried to get in the back of the truck. He bashed one individual with his gun causing him to fall and be overrun with a motorcycle. He also indicated that when he was in country at Long Bien, Vietnam waiting for his assignment on March 3rd or 4th 1970 he witnessed a young service member getting medi-vaced with a severe stomach wound. On a subsequent form for PTSD information received in June 2004, the veteran also stated that in the summer of 1970 while with the 263rd Maintenance Company, 58th Transportation Battalion in the Viking compound he was on perimeter guard or listening post with a fellow service member named G.K. who shot himself in the foot in an attempt to be sent home. The veteran also indicated that around the same time, his camp came under fire and another service member was wounded in the shoulder and received a Purple Heart. On another occasion while on guard duty at the Viking compound, the veteran fired his gun possibly killing someone who was on a boat. The veteran has also generally indicated that he witnessed sniper attacks and mortar rounds. These are stressors that may be capable of verification. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (noting that mortar/rocket attack may in some cases be a satisfactory stressor for PTSD). While a February 2006 VA memorandum indicated that the veteran's stressor information was insufficient for meaningful research, the Board finds that the veteran should be given another opportunity to provide more specific information regarding his purported in-service stressors. Accordingly, on remand, the veteran should be asked to provide more detailed information concerning precisely when and where he experienced his various stressors (including when he was subject to incoming mortar rounds and rocket attacks). Several records have noted a diagnosis of PTSD related to service. An October 2004 VA treatment record noted an impression of PTSD based on the veteran's purported stressors. As none of the stressors have been verified, any such positive evaluation is not demonstrative of PTSD for VA compensation purposes. If any of the veteran's stressors are verified on remand, he should be afforded another VA examination to determine if he has PTSD caused by a verifiable in-service stressor. Accordingly, the case is REMANDED for the following action: 1. Furnish the veteran with a corrective Veterans Claims Assistance Act of 2000 notification letter pertaining to his Meniere's disease claim. This issue should be characterized as entitlement to service connection for Meniere's disease with hearing loss and tinnitus, on a direct basis and as secondary to service-connected disability. 2. Obtain copies of records of any Meniere's disease, hearing loss, tinnitus, and PTSD treatment that the veteran may have received at the VA Medical Center in Little Rock, Arkansas since August 2005. Any such available records should be associated with the veteran's claims folder. 3. Ask the veteran to provide additional details concerning his stressors of being hit in the head and firing his gun possibly killing someone on a boat. Also ask him to provide an approximate 90-day time period in which he was exposed to incoming mortar and rocket attacks while stationed in Vietnam, and the locations in which those attacks occurred. Advise the veteran that without specific information his claimed stressors can not be verified. 4. Following receipt of the specific time periods and locations in which the veteran was exposed to incoming mortar and rocket attacks, request that the United States Army & Joint Services Records Research Center (JSRRC) perform a search of the unit history of the 263rd Maintenance Company, 58th Transportation Battalion in the Viking compound for the time period specified by the veteran in an attempt to verify whether the veteran's unit came under rocket/mortar attacks while stationed in Vietnam. Additionally, request JSRRC to verify all of the veteran's other stressors cited herein and any additional stressors he may provide. 5. If, and only if, JSRRC is able to verify any of the veteran's stressors, should the AMC schedule the veteran for a VA psychiatric examination. The claims folder is to be made available to the examiner for review in conjunction with the examination and the examiner should state on the examination report that (s)he has reviewed the claims folder. Based on a review of the claims folders and the results of the examination, the examiner is to answer the following questions: a. Is there a 50 percent probability or greater that the veteran has PTSD? b. If so, is there a 50 percent or greater that PTSD was caused by any of the independently verifiable in-service stressors? The examiner should also address any conflicting opinions in the record. 6. Schedule the veteran for an examination for his Meniere's disease with hearing loss and tinnitus. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must indicate in the examination report that the claims file was reviewed in conjunction with the examination. The examiner should opine whether there is a 50% probability or greater that Meniere's disease is related to service (including whether any such diagnosed disability is consistent with the veteran's purported in-service head injury). The examiner should also indicate whether the veteran's Meniere's disease is related to PTSD, including whether the Meniere's disease has undergone any permanent increase in severity due to PTSD, and if so, specify the degree of increase in severity over and above the preexisting base line of disability. The examiner should provide rationale for all opinions provided. If the requested opinions cannot be rendered without resort to speculation, the examiner should so state. 7. Then, readjudicate the claims for service connection for PTSD and for Meniere's disease with hearing loss and tinnitus, on a direct basis and as secondary to service-connected disability. If the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and allow him the appropriate opportunity for response. Thereafter, return the case to the Board. The veteran has the right to submit additional evidence and argument on the matters that 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).