Citation Nr: 1237778	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  10-13 860	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for right knee/leg disability.

2.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss.

3.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for tinnitus.

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


REPRESENTATION

Veteran represented by:	Michael J. Kelley, Esq.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from January 1985 to April 1985 and on active duty from April 1986 to January 1989.  He had a subsequent period of service in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the previously denied claims of entitlement to service connection for right knee/leg disability, bilateral hearing loss, and tinnitus.  The decision also denied the Veteran's original claim of entitlement to service connection for PTSD.

In September 2012, the Veteran presented sworn testimony during a personal hearing in Boston, Massachusetts, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's VA claims file.

The Board observes that in addition to PTSD, the medical evidence of record also indicates diagnoses of bipolar disorder, generalized anxiety disorder, and panic disorder without agoraphobia.  See the VA treatment records dated May 2007.  It is clear that the Veteran is asserting entitlement to service connection for a psychiatric disability or disabilities, however diagnosed.  The United States Court of Appeals for Veterans Claims (the Court) has decided that a veteran is not held to the disabilities (s)he has listed as a lay person without medical expertise; rather, service connection should be considered for any acquired psychiatric disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, (s)he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).  The issue on appeal has been restated accordingly.

As will be discussed below, the issues of entitlement to service connection for bilateral hearing loss and tinnitus are being reopened herein.  These issues as well as the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD are additionally addressed in the REMAND portion of the decision below and are REMANDED to the RO.  The Veteran will be notified if further action on his part is required.


FINDINGS OF FACT

1.  In a September 2005 decision, the RO denied the Veteran's claims of entitlement to service connection for bilateral hearing loss, tinnitus, and right knee/leg disability.

2.  The evidence submitted since the September 2005 RO decision is cumulative and redundant of the record at the time of the prior final denial of service connection for right knee/leg disability, and does not raise a reasonable possibility of substantiating the claim.

3.  The evidence submitted since the September 2005 RO decision is neither cumulative nor redundant of the record at the time of the prior final denials of service connection for bilateral hearing loss and tinnitus, and raises a reasonable possibility of substantiating these claims.




CONCLUSIONS OF LAW

1.  A September 2005 RO decision denying claims of entitlement to service connection for bilateral hearing loss, tinnitus, and right knee/leg disability is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

2.  Since the September 2005 rating decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for right knee/leg disability; this claim is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  Since the September 2005 rating decision, new and material evidence has been received with respect to the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and these claims are reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & West Supp. 2011).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2011); 38 C.F.R. § 3.159(b) (2012).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (April 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

As to the bilateral hearing loss and tinnitus claims, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issues of whether new and material evidence has been received sufficient to reopen the previously denied claims for service connection for a bilateral hearing loss and tinnitus, no further discussion of the VCAA notification requirements is required with respect to these claims.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

With respect to the right knee/leg claim, a pre-decisional notice letter in June 2007 complied with VA's duty to notify the Veteran with regard to this issue.  In particular, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Further, in the June 2007 letter, the RO informed the Veteran of its duty to assist him in substantiating his new and material claim under the VCAA, and the effect of this duty upon this issue.  This letter informed him of what constituted new and material evidence to reopen the previously denied, unappealed claim.  He was informed that evidence is new if it is submitted to the VA for the first time and that material evidence must pertain to the reason the claim was previously denied.  This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denials and the evidence needed to reopen the claims for service connection.  This letter also informed him of how disability ratings and effective dates are assigned.  See Dingess v. Nicholson, supra.  The Veteran has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

The Board also finds VA has satisfied its duty to assist the Veteran in the development of his right knee/leg claim.  Relevant in-service and post-service treatment reports are of record.

The Board additionally notes that the Veteran testified at the September 2012 Board hearing that he had received private treatment for an "Achilles heel" from Dr. Johnson in Andover, Massachusetts.  See the September 2012 Board hearing transcript, pgs. 6-7.  However, the Veteran clarified that there would be no record of any right knee/leg disability with Dr. Johnson.  Id. at pg. 7.  To the extent that such medical evidence exists, it is the Veteran's responsibility either to furnish it directly to VA or to identify it with reasonable specificity so that VA can obtain it.  The Veteran has done neither.

Accordingly, all obtainable evidence identified by the Veteran relative to his right knee/leg claim has been obtained and associated with the claims file, and he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.

As is applicable with regard to the Veteran's right knee/leg claim, an examination is not necessary if no new and material evidence has been received.  See 38 C.F.R. § 3.159(c)(4)(iii).  It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his right knee/leg claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.  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 benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Analysis-New and Material Evidence

In the current appeal, the Veteran contends that his right knee/leg disability, bilateral hearing loss, and tinnitus are the result of injuries sustained in service.  In this regard, the Board notes that further review of the claims file indicates that service connection for right knee/leg disability, bilateral hearing loss, and tinnitus were denied by the RO in a decision dated in September 2005.  The Veteran received notice of the decision and of his appellate rights in a letter from the RO dated one day later in September 2005.  The Veteran did not file a notice of disagreement as to the September 2005 RO decision and that decision therefore became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed.  38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105.

Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  See Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new evidence means evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claims.  See 38 C.F.R. § 3.156(a) (2012).

According to the Court, the pertinent VA law requires that, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  See Evans v. Browns, 9 Vet. App. 273 (1996).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d) (2012).

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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See 38 C.F.R. § 3.385 & Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

As previously noted, the Veteran's claims for service connection for right knee/leg disability, bilateral hearing loss, and tinnitus were last previously considered and denied in the September 2005 rating decision.  The evidence associated with the Veteran's claims file at the time of the September 2005 RO decision includes, but is not limited to, the Veteran's DD-214 and service treatment records, as well as, his March 2005 claim.

The evidence associated with the claims file subsequent to the September 2005 rating decision includes, but is not limited to, the Veteran's May 2007 claim to reopen the previously denied issues of entitlement to service connection for right knee/leg disability, bilateral hearing loss, and tinnitus; VA and private treatment records; and the Veteran's own lay assertions.

	A.  Right knee/leg disability

At the time of the September 2005 rating decision, the Veteran's contentions of a current right knee/leg disability, which initially manifested during his military service, was already of record.  Additionally, the Veteran's service records documented his military occupational specialty (MOS) of infantryman.  His service treatment records, to include the December 1989 active duty separation examination, did not document any complaint of, or treatment for, a right knee or leg disability.

As indicated above, the September 2005 denial of the Veteran's claim is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012).  Accordingly, as explained above, the Veteran's claim for service connection may only be reopened if he submits new and material evidence as to the missing element.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence bears directly and substantially upon the specific matters under consideration.

After a thorough review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for right knee/leg disability has not been submitted.

The Board recognizes that the Veteran has offered testimony concerning an in-service injury.  Specifically, he testified that he fell out of a helicopter and also fell into a pit during the same military operation.  See the September 2012 Board hearing transcript, pg. 6.  The Board finds such evidence "new" because it has not previously been submitted and is "material" because shows evidence of in-service injury.  As indicated above, "in determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Crucially, however, the Veteran has offered no new evidence of record as to current disability of the right knee or leg.  Specifically, the evidence received since the September 2005 rating action includes VA and private treatment records, which are pertinently absent any indication that the Veteran has complained of or been treated for a right knee or leg disability.  Moreover, at the September 2012 hearing, the Veteran did not provide any specific testimony concerning a current right knee or leg disability.

To the extent that the Veteran continues to assert that he has a generic right knee/leg disability, which was incurred during his military service, his repeated contentions are not new.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).

Moreover, the Board has considered the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). 

In the current appeal, however, the Veteran has not provided evidence or argument concerning a current right knee/leg disability.  Moreover, he has made no contentions as to diagnosis with respect to the right knee or leg.  Significantly, at no time during the current appeal has the Veteran asserted that he has been diagnosed with a specific right knee or leg disability since his military service.  Accordingly, his contentions made during the current appeal may not be deemed to be material.  Shade, supra.

The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so.  38 U.S.C.A. § 5107(a).  As the additionally received evidence does not tend to establish a current disability or a nexus, it does not raise a reasonable possibility of substantiating the claim on the merits.  See 38 C.F.R. § 3.156 (2012).  The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for right knee/leg disability may not be reopened.  The benefit sought on remains denied.

	B.  Bilateral Hearing Loss & Tinnitus

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

As indicated above, the RO denied the Veteran's original claims of entitlement to service connection for hearing loss and tinnitus in September 2005.  The Veteran did not file a notice of disagreement as to the September 2005 RO decision and that decision therefore became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

At the time of the September 2005 rating decision, the Veteran's reports of bilateral hearing loss and tinnitus were already of record.  With respect to in-service injury, the Veteran had simply contended that he had incurred bilateral hearing loss and tinnitus during his military service.  See the Veteran's claim dated March 2005.  Additionally, the Board notes that the Veteran's MOS of infantryman was also of record.  At the December 1989 active duty separation examination, authorized audiological evaluation pure tone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
0
LEFT
10
0
0
5
25

As indicated above, the September 2005 denial of the Veteran's claims is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012).  Accordingly, as explained above, the Veteran's claim for service connection may be reopened if he submits new and material evidence.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  Therefore, the Board's inquiry will be directed to the question of whether any additionally received evidence bears directly and substantially upon the specific matters under consideration.

The newly added evidence, in pertinent part, consists of VA and private treatment records, in addition to statements and testimony from the Veteran.

After a thorough review of the entire record, and for the reasons expressed immediately below, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claims.
Critically, the Veteran has repeatedly asserted that he suffers from currently hearing loss and tinnitus.  See, e.g. the September 2012 Board hearing transcript.  Moreover, the Veteran recently provided a statement pertaining to a specific in-service injury.  Notably, in a VA Form 21-4142 dated June 2007, the Veteran asserted that a grenade simulator went off about one foot from his face during a field exercise while he was stationed at Fort Campbell in 1987.

Pursuant to the Court's decision in Justus, for the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them.  As these statements and testimony of the Veteran are not inherently false or incredible, such lay testimony of in-service acoustic trauma is presumed to be true.

Pursuant to Shade, supra, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In addition to the recently added Board hearing transcript, the Veteran's statements concerning the in-service acoustic trauma were not of record at the time of the last final denial.  As such, this evidence is new.  It is also "material" because it relates to an unestablished fact necessary to substantiate the claim, namely the existence of an in-service injury.  Moreover, the Board finds that the newly submitted evidence addresses the basis of the prior denial in that the evidence suggests that the Veteran currently suffers from bilateral hearing loss and tinnitus which was incurred as a result of acoustic trauma sustained during his military service.  See Shade, 24 Vet. App. at 121 (regulations do not require new and material evidence as to each previously unproven element of a claim).  Accordingly, the Board finds that the newly submitted evidence raises a reasonable possibility of substantiating the claims.

Therefore, new and material evidence has been received pursuant to 38 C.F.R. 
§ 3.156(a).  The Veteran's claim for entitlement to service connection for bilateral hearing loss and tinnitus is therefore reopened.
ORDER

New and material evidence not having been received sufficient to reopen the claim for service connection for right knee/leg disability, the appeal as to that issue is denied.

New and material evidence sufficient to reopen a claim for service connection for hearing loss has been received; to this limited extent, the appeal is granted.

New and material evidence sufficient to reopen a claim for service connection for tinnitus has been received; to this limited extend, the appeal is granted.


REMAND

After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claims on appeal - entitlement to service connection for bilateral hearing loss, tinnitus, and acquired psychiatric disorder to include PTSD - must be remanded for further development.

With respect to the reopened claims of entitlement to service connection for hearing loss and tinnitus, the Veteran contends he sustained in-service noise exposure which caused his claimed bilateral hearing loss and tinnitus.  In this regard, the Board notes that, generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

As to current disability, the Veteran has asserted that he suffers from bilateral hearing loss and tinnitus.  See the September 2012 Board hearing transcript.  Notably, aside from the Veteran's own assertions, there is currently no medical evidence of record which documents continuing diagnoses of hearing loss or tinnitus.  Moreover, the Veteran was not afforded a VA audiology examination in order to determine if his claimed hearing loss as defined under VA regulation 38 C.F.R. § 3.385.  See 38 U.S.C.A. §§ 1110, 1131.  Accordingly, there remains a question of diagnosis as to both issues.

With regard to in-service injury or disease, the Veteran's service personnel records and DD-214 indicate that he served under the MOS of infantryman.  Additionally, the Veteran has asserted in-service acoustic trauma sustained during a field exercise.  See the VA Form 21-4142 dated June 2007.  The Board has no reason to disbelieve the Veteran's contentions concerning the in-service noise exposure as secondary to his MOS as well as the in-service incident described in his June 2007 statement.  Thus, in-service acoustic trauma is conceded for the purpose of this remand.

There are currently no medical opinions of record concerning medical nexus as to the hearing loss and tinnitus claims.  Thus, this case presents certain medical questions concerning diagnosis and nexus, which cannot be answered by the Board.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).  These questions must be addressed by an appropriately qualified physician.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  Accordingly, upon remand, the Veteran should be afforded a VA audiology examination to address the outstanding questions of diagnosis and nexus.

With respect to the claim of service connection for acquired psychiatric disorder to include PTSD, the Veteran has asserted that he incurred a psychiatric disorder as a result of military sexual trauma.  See the Veteran's statements dated June 2007 and September 2007.  Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  The regulation further requires the diagnosis to be in conformance with Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV).  See 38 C.F.R. §§ 3.304(f); 4.125(a) (2012).

The applicable regulation provides additional instruction in regard to claims involving service connection for PTSD due to personal assault.  See 38 C.F.R. § 3.304(f)(5) (2012).  The Board notes that 38 C.F.R. § 3.304(f) was amended in July 2010 to add a subsection to the regulation in regard to the evidentiary standard for establishing the required in-service stressor for claims involving a veteran's fear of hostile military or terrorist activity.  See 75 Fed. Reg. 39,843-39,852 (July 13, 2010).  A correction was published to establish the effective date of the amendment as of July 13, 2010.  See 75 Fed. Reg. 41,092 (July 15, 2010).  The change in regulation did add a new subsection 38 C.F.R. § 3.304(f)(3) and required the renumbering of the existing subsections.  Thus, the applicable subsection relating to personal assault was renumbered as 38 C.F.R. § 3.304(f)(5).  No substantive change was made to the pertinent regulation relating to personal assault cases.

With regard to the requirements to establish service connection for PTSD, the Board observes that the Veteran must have experienced an in-service stressor.  In personal assault cases, the determination of whether such a stressor occurred is often a very difficult finding to make because there is rarely documentation of the events as related by the claimant.  The Board must weigh several factors in making such a determination that includes the lay statements given by the Veteran as well as supporting lay statements from others that have contemporaneous knowledge of the events, either by direct observance or through knowledge conveyed by the claimant.  As indicated, the Court does allow for a mental health professional to assess such statements in determining whether they support a determination that a claimant, in this case the Veteran, did experience the claimed in-service assaults.  Patton v. West, 12 Vet. App. 272 (1999).

In Patton, supra, the Court held that VA manual procedures for developing evidence related to PTSD claims based on personal assault must be followed and remanded the claim for additional notice and development.  The Court noted that, in cases where available records do not provide objective or supportive evidence of the alleged in- service stressor, it may be required that VA develop alternative sources of information.  Consistent with the holding in Patton, VA must notify the Veteran of the possible alternative sources for verifying the claimed in-service stressors due to personal assault.

In personal assault cases, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities."  VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5).  Examples of corroborating 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 PTSD 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 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.  VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(3).

The Court likened VA's duty to notify a claimant of the criteria set forth in 38 C.F.R. § 3.304(f)(3) to the requirements set forth in the VCAA (38 U.S.C.A. § 5103).  Gallegos v. Peake, 22 Vet. App. 329, 336-37 (2008).  While the Veteran received a VCAA letter in June 2007 regarding his PTSD claim which included a PTSD questionnaire, the letter failed to address all of the factors cited herein.  Consequently, on remand, the RO must ensure that the development procedures as set out in Patton and Gallegos are completed.

In this case, the Veteran has asserted that he was sexually assaulted on two occasions by a fellow soldier.  See the Veteran's statements dated June 2007 and September 2007.  The Veteran has asserted that the soldier forcibly performed oral sex on him and then subsequently sexually assaulted him at a later date.  Id.  The Veteran has pointed to a change in behavior following the sexual assaults, including a unit transfer in October 1991 and a period in which he was absent without leave (AWOL) in April 1993.  Id.; see also the Veteran's service personnel records.  Additionally, the Veteran submitted a statement from a fellow soldier, Mr. P.P., who indicated that the Veteran told him of the assaults during their military service.  Mr. P.P. stated that he told the Veteran not to report the assault and personally threatened the perpetrator.  See the statement from Mr. P.P. dated December 2007.  Mr. P.P. further described witnessing a change in the Veteran's behavior following the sexual assaults.  Id.

As indicated above, the multiple psychiatric diagnoses are documented in the claims file including bipolar disorder, generalized anxiety disorder, panic disorder without agoraphobia, and PTSD.  See the VA treatment records dated May 2007.  The evidence of record demonstrates that the Veteran has also described multiple incidents of childhood sexual trauma to include sexual abuse by his father and two priests.  See, e.g., the VA treatment record dated April 2007.

In a letter dated September 2007, Dr. C.V.R. indicated that the Veteran "states that the two assaults at Fort Campbell triggered his childhood sexual trauma resulting in feeling powerless during the two rapes along with feelings of helplessness in reporting the assaults to his superiors.  [The Veteran] reports these military assaults have impacted and continue to impact family relationships, employment and social functioning."

In a letter dated December 2007, Dr. L.S.S. stated that the Veteran has been diagnosed with PTSD as well as depression and anxiety.  He continued, "I believe that the more recent sexual traumas could have exacerbated the symptoms he had experienced after the childhood sexual trauma as his symptoms became far more evident and serious following the latter attacks."  Athough it addresses the issue of nexus, the opinion of Dr. L.S.S. is admittedly speculative and provides little rationale to support the conclusion rendered.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence).  Moreover, the Court recently held in Jones v. Shinseki, 23 Vet. App. 382 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.  As indicated above, the December 2007 private medical opinion provided incomplete rationale, and there is no other competent medical opinion of record the addresses the issue of medical nexus.

Accordingly, there remains a question of whether the Veteran's acquired psychiatric disorder to include PTSD pre-existed his military service and was aggravated thereby.  In rendering an opinion as to medical nexus and aggravation, the examiner should also address the Veteran's in-service stressors, his competent report of continued psychological symptoms, and provide a medical nexus opinion as to the currently diagnosed psychiatric disorders.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).

Also, on remand, any pertinent ongoing treatment records should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002).  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

Accordingly, the case is REMANDED for the following action:

1. Notify the Veteran that he may submit alternative forms of evidence (evidence other than service records) to corroborate his account of the alleged in-service assault.  A "special PTSD personal-assault" letter and questionnaire should be sent to the Veteran to assist him in identifying potential alternative sources of evidence to establish an in-service stressor, as set forth in M21-1, part III, 5.14(c).  He should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals.  The Veteran should also be notified that alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor under 38 C.F.R. § 3.304(f)(3).  The Veteran must then be provided additional time to submit such evidence after receipt of the personal assault letter and, where appropriate, by obtaining evidence on the Veteran's behalf.

2. After obtaining the appropriate releases where necessary, procure records of any treatment that the Veteran has recently received.  The Board is particularly interested in records of treatment that the Veteran may have received through the VA Bedford, Massachusetts Healthcare System, or any other VA healthcare system or facility since October 2007.  All such available documents should be associated with the claims file.

3. Thereafter, schedule the Veteran for a VA audiological examination to determine the nature and etiology of his hearing loss and tinnitus.  The claims file should be made available to and reviewed by the examiner.  All necessary studies, including audiological testing, should be performed.  Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz.  A Maryland CNC Test should also be administered to determine speech recognition scores.  The examiner should either diagnose or rule out tinnitus.

The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the currently diagnosed hearing loss and tinnitus had their clinical onset in service or are otherwise traceable to the Veteran's military service, to include his in-service acoustic trauma/noise exposure.  The examiner should address the Veteran's competent assertions of continued hearing problems and tinnitus symptomatology since service and provide the medical reasons for accepting or rejecting the Veteran's statements of continuity of symptoms since service.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones, supra.  (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

4. Then, arrange for the Veteran to be scheduled for a VA psychiatric examination to determine the existence, nature and etiology of any current chronic psychiatric disorder to include PTSD.  The claims file must be made available to the examiner for review and the examination report must indicate whether such review was accomplished.  After examination and review of the claims file, the examiner should address the following:

(1).  The examiner should either diagnose PTSD or rule it out as a diagnosis.  The examiner should document all other current psychiatric diagnoses.

(2).  If the examiner diagnoses the Veteran with PTSD, the examiner should indicate whether it is at least as likely as not that the Veteran's currently diagnosed PTSD is due to this claimed in-service stressors.

(3).  The VA examiner should also provide an opinion as to whether the evidence of record clearly and unmistakably shows that the Veteran's acquired psychiatric disability pre-existed his active duty military service.  If the answer to this question is affirmative, the examiner should then provide an opinion as to whether the pre-existing acquired psychiatric disability was not aggravated by service, beyond the natural progression of the disorder(s).  If the examiner finds that the Veteran's acquired psychiatric disability did not pre-exist his military service, he/she should render an opinion as to whether the Veteran's currently diagnosed acquired psychiatric disability was incurred in his military service.

In answering these questions, the examiner should address the documented in-service evidence of disciplinary problems, the Veteran's documented unit transfer in October 1991, and the statement from Mr. P.P. dated December 2007.

If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones, supra.  (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)
5. Thereafter, readjudicate the issues of entitlement to service connection for hearing loss, tinnitus, and acquired psychiatric disorder to include PTSD.  If any benefit sought is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board.

The Veteran 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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the 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. 2012).



______________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs