Citation Nr: 1110820 Decision Date: 03/18/11 Archive Date: 03/30/11 DOCKET NO. 09-22 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from January 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In September 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current bilateral hearing loss is the result of acoustic trauma sustained in service. Specifically he asserts that his hearing loss is related to exposure to small arms fire during basic training and also since he was assigned to an artillery unit, that he was exposed to gunfire. He also states that he did motor pool work on a daily basis. He contends that he has had hearing loss since service. He was examined by VA in December 2007 and hearing loss by VA standards was confirmed. The examiner opined that it is not likely that hearing loss is related to noise exposure while in the service. No rationale was provided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained on this issue is not adequate for making a determination in this case. Therefore an addendum opinion is necessary on this claim. The Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b). Notwithstanding the provisions of 38 U.S.C.A. § 1132, the wartime provisions of 38 U.S.C.A. § 1111 shall be applicable in the case of any Veteran who served in the active military, naval, or air service after December 31, 1946, including peacetime Veterans. 38 U.S.C.A. § 1137. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, if an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Review of the evidence of record shows that the Veteran was noted to have nervous trouble by way of history on the January 1968 entrance report of medical examination. The physician's summary states, nervous at times. Subsequent service treatment records show that he was treated in September 1968 and the examiner noted, increased nervousness-he is chronically nervous. The November 1969 separation examination report shows a history of nervous trouble and noted that he was worried and nervous since about a month ago regarding is wife's car accident. The record shows that the Veteran was seen for psychiatric complaints after service in 1977 and that he has diagnoses of depression and anxiety in VA and private records. The record contains lay statements from the Veteran's mother-in-law and his wife. His mother-in-law stated that the Veteran went through a major personality change after service. His wife reported that the Veteran was not the same person after he was released from service in that he was angry, into only himself and was drinking. She indicated that this never stopped. The Veteran was examined by VA in November 2008, and the examiner found that the depression is less likely as not caused by or a result of the Veteran being worried and nervous during military service. The examiner stated that the Veteran did not receive any mental health treatment during service. The rationale was that the Veteran reported a very dysfunctional childhood and the examiner found that the Veteran likely had onset of depressive symptoms well before military service. He reported that the current depression and anxiety symptoms are not related to any aspect of his military service. In a September 2009 VA addendum opinion, a VA examiner reported that anxiety disorders are acute and of no more than six months duration and that the Veteran did not receive any treatment until the late 1970's. He reported that the current anxiety disorder represents an entirely separate and discrete disorder that is not related to symptoms in service. However, the Board notes that neither examiner discussed the September 1968 finding in service of chronic nervousness. The record does not include an opinion as to whether the Veteran's psychiatric disorder was permanently worsened or aggravated during his period of active service. Additionally, the Veteran has pointed out in a May 2010 statement that his 201 file contains flags that support a finding that his psychiatric disorder was aggravated in service. He reported that he was written up for fighting as well as for other violations. The file shows that he received several Article 15's for fighting, and for being absent from his unit. The Veteran contends that these should be considered in support of his claim of aggravation. The VA examiners did not address the personnel record findings. As noted, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board determines that the Veteran must be scheduled for an appropriate VA examination to obtain a medical opinion concerning the nature and etiology of the Veteran's current psychiatric condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103(d) and 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that additional development is warranted in this case to determine whether the Veteran's psychiatric condition was aggravated during his period of active service beyond the natural progression of the disorder, as his service treatment records reflect a history of nervousness as well as treatment for injuries from fighting and a finding of chronic nervousness, and his personnel records show various disciplinary actions against him. As such, the Board finds that the Veteran should be afforded an appropriate VA examination to assess the nature and etiology of his current psychiatric disorder to determine whether his disorder was aggravated by or is otherwise related to his period of active service. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's file to the December 2007 examiner who evaluated him for his hearing loss disability. The examiner should review the claims file and offer an addendum opinion with complete rationale as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed hearing loss disorder is related to the Veteran's service. If the December 2007 examiner is no longer available, refer the file to another qualified audiologist for review of the records and to provide the requested opinion. 2. Schedule the Veteran for an appropriate VA examination by and examiner who has not previously examined him, to determine the nature and etiology of any currently diagnosed psychiatric condition. The Veteran's claims file, to include a complete copy of this Remand, his service treatment and service personnel records and all evidence (medical and lay evidence) regarding the Veteran's treatment following separation, should be made available to the examiner for review. The examiner should address the inservice findings and the Article 15's noted in the personnel file. All necessary studies and tests must be conducted. The examiner is then requested to: (a) Assess any currently diagnosed psychiatric condition; (b) Opine whether any currently diagnosed psychiatric condition increased in severity during period of active service (beyond the natural progression of the disease if applicable); (c) Opine whether it is at least as likely as not (50 percent likelihood or greater) that any current psychiatric condition was caused or aggravated by the Veteran's period of active service. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be rendered. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. Following completion of the above, the claim for should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). _________________________________________________ F. JUDGE FLOWERS 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) (2010).