Citation Nr: 1117543	
Decision Date: 05/06/11    Archive Date: 05/17/11

DOCKET NO.  09-37 464	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for left ear hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for posttraumatic stress disorder (PTSD), to include acquired psychiatric disorders. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1984 to March 1988.  He had an additional period of active service from March 1988 to June 1989.  The Veteran is not eligible for Department of Veterans Affairs (VA) benefits for the latter period of active service because it was found to be under dishonorable conditions in a June 1991 VA decision by the Regional Office (RO) in St. Petersburg, Florida.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the VARO in Phoenix, Arizona.

The Veteran testified in June 2010 before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Phoenix; a transcript is of record.  He indicated that he was not prepared to testify regarding the issue of service connection for PTSD at the June 2010 hearing.  However, in a telephone conversation later in June 2010 with RO personnel which is described in writing in the claims file, the Veteran indicated that he wished for the Board to consider this issue.  

The issues of service connection for right ear hearing loss, tinnitus, and PTSD, to include acquired psychiatric disorders, are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

FINDINGS OF FACT

The competent and probative evidence preponderates against a finding that the Veteran's has left ear hearing loss which is due to any incident or event in active military service or that was aggravated by service; and sensorineural hearing loss in the left ear, as an organic disease of the nervous system, was not manifested either during service or to a compensable degree within one year after separation from service.

CONCLUSION OF LAW

Left ear hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none.

In March 2008 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA.  The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies.  He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim.  See 38 C.F.R. § 3.159(b)(1).  Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO.

The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the May 2008 rating decision, August 2009 SOC, and January 2010 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional periods to submit more evidence.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices.

In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.  This requirement was fulfilled in a March 2008 letter which VA sent to the Veteran.

The Board finds that the VA audiological examination that the Veteran had was sufficient as it relates to left ear hearing loss because the examiners supported their conclusions with analysis that can be weighed against the other evidence of record.  Stefl v. Nicholson.  21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.").

Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  Therefore no useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran.  The Court of Appeals for Veteran Claims has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

II.  Relevant Law, Factual Background, and Analysis

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010).  Service connection may be granted for a disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must (1) be medical evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Alternatively, service connection based on continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Instead, under section 1154(a), 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, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).

Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition.  38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  The Court of Appeals for Veterans Claims has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be."  Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000).

A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b).  Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

Regarding the question of aggravation of a pre-existing condition, essentially, the law as recently interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), mandates that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.

As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein.  The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence.  See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993).  The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  38 C.F.R. § 3.304(b)(1).

Determinations regarding the pre-existence of a disability should be based on medical judgment derived from accepted medical principles, and the clinical factors pertinent to the basic character, origin, and development of such injury or disease. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles regarding incurrence, symptoms, and course of the injury or disease, together with all other lay and medical evidence concerning the inception, development, and manifestations of the impairment.  38 C.F.R. § 3.304(b).

Under longstanding law, once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306.  See VAOPGCPREC 3-2003 (July 16, 2003).  VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153.  However, if VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2010).  Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The Board acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service under the standard of 38 C.F.R. § 3.385 is not fatal to his claim for service connection.  The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ."  Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)).  Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service.

Reviewing the evidence of record, the service treatment records (STRs) show that on an April 1983 medical history report the Veteran checked both "yes" and "don't know" as to whether he had ever had hearing loss.  On an examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
40
35
55
LEFT
10
5
5
5
40

When the Veteran's hearing was rechecked in April 1983, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
30
40
LEFT
5
5
5
0
40

March 1984 testing indicated, pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
35
40
40
LEFT
5
5
5
0
70

April 1985 testing indicated, pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
30
35
50
LEFT
5
5
5
0
65


On a March 1988 examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
35
30
60
LEFT
5
5
15
5
70

The Veteran indicated on a June 1988 medical history report that he had had hearing loss.

The Veteran underwent a VA audio examination in May 2008.  The examiner reviewed the Veteran's claims file and noted that when the Veteran was 10 years old a tumor was removed from his ear.  The enlistment examination showed pre-existing bilateral hearing loss, which was mild to moderate in the right ear and severe in high frequencies in the left ear.  The Veteran's separation examination in the left ear was essentially unchanged from enlistment, and there was some progression of hearing loss in the right ear.

At the VA examination, the Veteran reported a history of noise exposure to aircraft during his active service.  He denied post-service noise exposure, and reported having hearing loss secondary to a right mastoidectomy at age 10.  He said that his hearing loss interfered with interpersonal communication and with understanding the television.  He reported that his tinnitus interfered with his hearing.  On the authorized audiological, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
75
75
65
75
90
LEFT
25
25
20
35
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed the Veteran with right ear severe, mixed hearing loss and left ear high frequency sensorineural hearing loss.  

The examiner noted that the pre-existing hearing loss in the left ear was essentially unchanged between enlistment and separation.  Therefore, she opined that it is not likely that the left ear hearing loss is due to military service.

The Veteran testified at the June 2010 hearing that he wore hearing protection during his active service but that many times it would fall off when he leaned over.  In addition, there were times when he did not wear it.  He further testified that he had not had noise exposure since service. 

We recognize the sincerity of the arguments advanced by the Veteran that his left ear hearing loss is service connected.  However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 

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, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, supra.  However, hearing loss requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology.  In the present case, the VA examiner did not feel that the Veteran's left ear hearing loss was related to military service, because the Veteran had hearing loss when he entered service and it did not worsen during service.

Because the evidence preponderates against the claim of service connection for left ear hearing loss, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

Service connection for left ear hearing loss is denied.


REMAND

The U.S. Court of Appeals for Veterans Claims, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), held that once VA undertakes the effort to provide an examination it must obtain a fully adequate one.  At the May 2008 audio examination, the Veteran reported having bilateral, subjective, constant, severe tinnitus for 23 years. The examiner opined that it is not likely that the Veteran's tinnitus is related to military noise exposure because of the lack of complaints of tinnitus in the STRs.  However, the examiner's opinion is not adequate for adjudication purposes, because it does not indicate that she considered whether lay evidence is sufficient to establish a causal connection between the Veteran's current tinnitus and his active service.  See Buchanan, 451 F.3d at 1336; see also McLendon v. Nicholson, 20 Vet. App. 70, 85 (2006) (lack of actual evidence does not constitute substantive negative evidence).  Therefore, a new opinion must be obtained before the claim can be decided on the merits.

With regard to the right ear hearing loss, the examiner opined that, based on the Veteran's reported history of pre-existing hearing loss in the right ear, right middle ear surgery during childhood, and the mixed nature of the hearing loss, it appears that the hearing loss is not due to military noise exposure.  Although there was a shift in hearing levels from enlistment to separation in the right ear, the examiner wrote that it is not possible to determine without resorting to mere speculation whether or not the shift is related to noise exposure or to the pre-existing condition in the right ear.  A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Since the VA examiner did not state why she could not state an opinion on aggravation of the right ear hearing loss without resorting to speculation, a new opinion must be obtained before the claim can be decided on the merits.

In order for service connection to be awarded for PTSD, three elements must be present:  (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997).  The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV), as the source of criteria for the diagnosis of claimed psychiatric disorders.  DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present:  (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror.  

The VA regulation at 38 C.F.R. 3.304(f) has been amended by the Secretary of Veterans Affairs, by the addition of the following new paragraph: 

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity"' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

75 Fed. Reg. 39,843-852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)).  The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010.

The Court of Appeals for Veterans Claims has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record).

In the present case, the Veteran's service personnel records show that he served on the USS America.  His June 2007 stressor statement indicates that while he was aboard the USS America in the Gulf of Sidra around April 1, 1986, an announcement was made to report to battle stations, and another announcement stated that a couple of submarines and gunboats were coming at the ship.  All he could think about was the ship being struck by a torpedo and getting blown up.  In addition, while he was serving on the USS America, he was watching bombs being loaded for flight operations when he heard an officer say to another officer that he hoped they would not have to put any sailors into the caskets on the bulkhead.  The Veteran indicated that this scared him, and that he had been to only one funeral in the prior 21 years.

March 2010 VA treatment notes indicate that the Veteran's stressors were the April 1, 1986, incident and another one a few days later in which a helicopter that was trying to land crashed on the ship's deck.  The Veteran reported nightmares of these incidents and recurrent, intrusive thoughts.  He experienced psychological distress when reminded of these events and said he avoids thoughts, feelings, activities, and smells that remind him of what happened.  He reported difficulty maintaining a marital relationship and regular employment, and he had reduced interest in his previous activities as well as feelings of alienation.  He had problems sleeping, irritability, poor concentration, and increased startle response.  Depression symptoms included irritability, liability, withdrawal, reduced pleasure, a fair appetite, and insomnia.  The Veteran was diagnosed with PTSD and depression, NOS (not otherwise specified).  Previous VA treatment included addiction counseling and psychiatric treatment for depression.

The Board finds that, under the current amended version of 38 C.F.R. § 3.304(f), the Veteran's statement regarding the April 1, 1986, incident in the Gulf of Sidra does not need verification because it involved fear of hostile military action.  Therefore, there is a valid stressor from the Veteran's military service for the purposes of a diagnosis of PTSD.  However, it is not clear from the treatment records whether the Veteran's diagnosis of PTSD was based solely upon the verified stressor.  Therefore, an examination is necessary before the claim can be decided on the merits.  

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran provide sufficient information, and, if necessary, authorization, to enable the RO to obtain any additional evidence, not already of record, which pertains to the claim for service connection for right ear hearing loss, tinnitus, and PTSD, to include acquired mental disorders.  Invite the Veteran to submit all pertinent evidence in his possession, and explain the types of evidence that is his ultimate responsibility to submit.

2.  After all available records and/or responses from each contacted entity have been associated with the claims file, or the time period for the Veteran's response has expired, request an examination report addendum from the audiologist who conducted the May 2008 examination.  The claims file, to include a copy of this Remand, must be made available to the examiner.  If the May 2008 examiner is not available, request review of the Veteran's claims file by another audiologist.  In the report addendum, an opinion should be provided as to:

a.  Whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's current right ear hearing loss was caused directly by or arose during his active military service or was aggravated by such service, or whether such an incurrence, or causal or etiological relationship, is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.  If the examiner cannot state an opinion without resorting to mere speculation, the examiner must explain why that is so.

b.  Whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's current tinnitus was caused directly by or arose during his active military service or was aggravated by such service, or whether such an incurrence, or causal or etiological relationship, is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.  If the examiner cannot state an opinion without resorting to mere speculation, the examiner must explain why that is so.

c.  Note:  As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

3.  Schedule the Veteran for a VA mental health examination.  The claims file, to include a copy of this Remand, must be made available to the examiner.  The report of the examination should include indication that the claims file was reviewed, and should include discussion of the Veteran's documented history, and his history and contentions regarding his claimed PTSD or other mental disorder.  All indicated special studies deemed necessary should be conducted.

a.  The examiner should provide a definitive diagnosis of all mental disorders present, to include PTSD if the required DSM-IV criteria are met.  Only the verified stressor relating to the 1986 incident on the USS America in the Gulf of Sidra relating to enemy craft may be considered when determining if the DSM-IV criteria for PTSD are met.

b.  The examiner should then render an opinion as to whether it is at least as likely as not (that is, to at least a 50-50 degree of probability) that any currently diagnosed mental disorder is related to the Veteran's period of active service, or whether such a relationship to service in unlikely (i.e., less than a 50-50 probability).  A complete rationale for all opinions expressed must be provided.  If the examiner cannot state an opinion without resorting to mere speculation, the examiner should so state, and explain why that is so.

c.  Note:  As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

4.  Thereafter, readjudicate the Veteran's claim for service connection for right ear hearing loss, tinnitus, and PTSD, to include any other acquired psychiatric disorders.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with an SSOC.  

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. 2010).



___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs