Citation Nr: 1000091 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 08-09 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for heart disease, to include as due to herbicide exposure, 5. Entitlement to service connection for hypertension, to include as secondary to heart disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Army from May 1966 to June 1970, and from June 1971 to June 1974. From June 1970 to June 1971, the Veteran was a member of the United States Army Reserves. He served a tour of duty in Vietnam during his first period of active duty service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran testified at a November 2009 hearing held before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is associated with the claims file. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. 1116, the Department of Veterans Affairs (VA) will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on the date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. As the appeals with regard to service connection for heart disease and hypertension as secondary to that heart disease are affected by these new presumptions, the Board must stay action on those matters in accordance with the Secretary's stay. Once the planned final regulations are published, the adjudication of any case or claim that has been stayed will be resumed. The issues of service connection for bilateral hearing loss and for a low back disability 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 Currently diagnosed PTSD is causally related to verified in- service combat stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection for PTSD Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy." If the claimed stressor is related to combat, the Veteran's lay testimony alone is sufficient to establish the occurrence of the alleged stressor when the allegation is consistent with the facts and circumstances of his service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). The Veteran served in Vietnam from August 1967 to August 1968, as a tank driver with M Company, 3rd Squadron, 11th Armored Cavalry Regiment (the "Blackhorse"). This is a front line combat unit. He participated in several counter offensives, and was present in country during the Tet Offensive. The Veteran alleges direct participation in combat action, when his tank lead patrols into the jungle or performed minesweeping duties. He also saw dead or mangled bodies. The Veteran's allegations are entirely consistent with the facts and circumstances of his service. The Veteran unquestionably participated in combat, and his statements are sufficient to establish the occurrence of the alleged in- service stressors. VA treatment records reveal that on initial screening in May 2002, the Veteran exhibited some symptoms of PTSD, and further workup was recommended. Objective testing was consistent with PTSD, if borderline. A licensed clinical social worker diagnosed PTSD in January 2003, based on his combat experiences. Depression was also diagnosed. VA treatment records continue to show a diagnosis of and treatment for PTSD. At an April 2005 VA examination, a VA psychologist reviewed the claims file and interviewed the Veteran. She opined that a diagnosis of PTSD, related to verified combat experiences, was warranted, based on objective testing and the Veteran's subjective reports of symptoms. She also diagnosed a depressive disorder. A second VA examination was conducted in January 2009. The examiner reviewed the claims file and interviewed the Veteran. He diagnosed a depressive disorder, but opined that the Veteran "did not have symptoms that meet the criteria for PTSD." The record reflects verified in-service stressor events related to the Veteran's combat experiences, such as minesweeping. Examining doctors disagree as to whether a diagnosis of PTSD is appropriate, but treating professionals endorse a finding of PTSD. Resolving all reasonable doubt in favor of the Veteran, a diagnosis of PTSD is established. The opinions of record addressing the question unequivocally associate that diagnosis with the verified combat stressors. Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. I. Bilateral Hearing Loss The evidence of record establishes a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. A VA treating doctor, who did not review the Veteran's service records, opined in July 2004 that it was as likely as not that the Veteran's hearing loss was related to service, based on extensive in-service noise exposure. At a July 2005 VA examination, however, the Veteran described extensive post-service noise exposure in the construction business. That examiner did not offer an opinion on the etiology of the hearing loss. Service treatment records do not show the onset of a hearing loss disability in service. Records in fact appear to show improvement in hearing over the course of the Veteran's service following his documented noise exposure. A remand is required for a VA examination and a medical opinion, in light of the contradictory evidence of record, and to ensure that the opining doctor considers complete and accurate facts. II. Low Back Disability The veteran has a current low back disability. He alleges that his back was injured when a small plane crashed in front of him in approximately July 1966, while he was in basic training. He states he was struck as he tried to run away, and awoke in the hospital. The Veteran reports that he was hospitalized at Ft. Benning for two days. A remand is required for reasonable efforts to obtain these clinical records. Further, the occurrence of the reported plane crash has never been verified. The Veteran should be asked to supply additional details regarding the circumstances of the incident, to allow VA to conduct meaningful inquiries of military and civilian authorities. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is required.) 1. Contact the Veteran and ask him to supply as much detail as possible regarding the alleged 1966 plane crash, to include location, date, whether the plane was military or civilian, and the identities of any involved people or units. 2. Submit appropriate inquiries to the Joint Service Records Research Center (JSRRC) and/or the National Transportation Safety Board (NTSB) and Federal Aviation Agency (FAA) to verify the occurrence of the alleged plane crash. 3. Request all clinical (hospital) treatment records from the medical facility at Ft. Benning, Georgia, for the Veteran for the period of May 1966 to July 1966. 4. If corroborating evidence is obtained, schedule the Veteran for an appropriate VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner is to diagnose any current low back disabilities and provide an opinion as to whether it is at least as likely as not that the current low back disabilities are related to service. A full and complete rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA Audiology examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether a currently diagnosed bilateral hearing loss disability is at least as likely as not related to verified in- service noise exposure. A full and complete rationale for all opinions expressed must be provided. 5. The RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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. 2009). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs