Citation Nr: 1008034 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 05-28 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) due to a personal assault. 2. Entitlement to a compensable rating for service-connected left ear hearing loss. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 1994, during peacetime and the Persian Gulf War. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, Regional Office (RO), which inter alia denied service connection for PTSD and denied a compensable rating for service-connected left ear hearing loss. The Veteran disagreed with such decisions and subsequently perfected an appeal. In April 2009, the Veteran testified before the undersigned Veterans Law Judge via video conference. A copy of the hearing transcript is of record and has been reviewed. The issues of entitlement to service connection for right ear hearing loss and vertigo have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD due to a personal assault, which he maintains occurred during his active duty service. The Veteran also seeks a compensable rating for his service-connected left ear hearing loss disability. Based on review of the record, the Board finds that further development is necessary. Service Connection Claim Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor 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) (2009). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Review of the record reveals that the Veteran's service personnel records are not associated with the claims folder. Such records may contain evidence that the Veteran underwent behavioral changes in-service as a result of his personal assault. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). This duty includes obtaining pertinent service records identified by the Veteran or which would help substantiate his claim. Id. Although the RO made requests to the National Personnel Records Center (NPRC) for the Veteran's entire personnel record, there was no formal finding from NPRC that the Veteran's service personnel records were unavailable. Further, such requests are unclear as to whether the RO used the correct codes to obtain the Veteran's entire personnel file. Review of such requests indicate that the personnel file was sought under Codes 13 and 25. See June 2006 VA Request for Information; July 2007 VA Request for Information. As such, the AMC/RO should obtain the Veteran's service personnel records. If such records are unavailable, the AMC/RO should obtain and associate with the claims folder a formal finding from the NPRC that such records are unavailable. Increased Rating Claim Review of the record reveals that the Veteran last underwent a VA "audio" examination in June 2006, and the record contains subsequent statements from the Veteran to the effect that his left ear hearing loss disability has worsened. Thus, the Board finds that a more contemporaneous VA examination is needed in order to assess the current severity of the Veteran's service-connected left ear hearing loss disability. The fulfillment of the duty to assist requires a thorough and contemporaneous medical examination that considers prior medical examinations and treatment in order to conduct a complete evaluation of the veteran's claims. 38 C.F.R. § 4.2 (2009). Where further evidence, or clarification of the evidence, is needed for proper appellate decision-making, a remand to the RO is required. 38 C.F.R. § 19.9(a)(1) (2009). During the pendency of this appeal, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Review of the Veteran's April 2004 and June 2006 VA Audio Examination Reports reveal that the functional effects caused by the Veteran's hearing disability were not discussed. Thus, the functional effects caused by the Veteran's hearing disability must be discussed in the contemporaneous VA examination. Further, during the pendency of this appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As such, the Rice case must be considered in readjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should also obtain and associate with the claims file, through the appropriate channels to include the NPRC, the Veteran's complete service personnel records. To the extent there is any attempt to obtain records, including any unsuccessful attempts, the claims file must contain documentation of the attempts made. The Veteran should also be informed of the negative results, and should be given an opportunity to obtain the records. 2. Provide the Veteran an additional opportunity to provide evidence of the claimed in-service personal assault. Notify the veteran that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 3. Schedule the Veteran for a VA psychiatric examination for the purpose of determining the etiology of the current psychiatric diagnosis, to include PTSD. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests should be accomplished. A rationale for any opinion expressed should be provided. The examiner must be made aware that the Veteran's military personnel records should be reviewed to determine if he underwent behavioral changes in-service as a result of his personal assault. Based on examination findings, historical records, and medical principles, the VA examiner should give a medical opinion, with full rationale, as to the likely etiology of the Veteran's diagnosed psychiatric disability, to include PTSD, and specifically whether it is at least as likely as not that the Veteran has PTSD or any other psychiatric disability which is etiologically related to his military service. The examiner should specifically identify the verified stressor(s) which is(are) responsible for PTSD. A rationale for any opinion expressed should be provided. 4. Schedule the Veteran for a VA audio examination to determine the current extent and severity of his service- connected left ear hearing loss disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected left ear hearing loss disability. The examiner should also fully describe the functional effects, including difficulty hearing and understanding conversational speech, caused by the Veteran's left ear hearing disability in the final report. All opinions expressed should be accompanied by supporting rationale. 5. Upon completion of the above- requested development, the RO should readjudicate the Veteran's service connection claim for an acquired psychiatric disorder, to include PTSD due to a personal assault, and increased rating claim for left ear hearing loss. All applicable laws and regulations should be considered, including consideration of Rice v. Shinseki, 22 Vet. App. 447 (2009). If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examinations requested in this remand are to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by not attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2009).