Citation Nr: 1300975 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-32 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD), for accrued benefits purposes. 2. Entitlement to service connection for a bilateral hearing loss disability, for accrued benefits purposes. 3. Entitlement to service connection for tinnitus, for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. The appellant seeks benefits as a surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, reopened and denied a claim for entitlement to service connection for PTSD on a de novo basis and denied service connection for a bilateral hearing loss disability and for tinnitus, all for accrued benefits purposes. The January 2008 RO decision (shown above) reopened and denied a claim for entitlement to service connection for PTSD on a de novo basis, for accrued benefits purposes. However, a prior May 2006 RO decision that denied the Veteran's claim for entitlement to service connection for PTSD, was not final. The Veteran essentially expressed disagreement with that decision and continued to submit evidence, as to the issue of entitlement to service connection for PTSD, within one year of that decision. Consequently, the May 2006 RO decision was not final and the Veteran's claim for entitlement to service connection for PTSD had been pending since that time. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). The issues of entitlement to service connection for a bilateral hearing loss disability and for tinnitus, both for accrued benefits purposes, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of the Veteran's death, the claim for service connection for PTSD was still pending. 2. At the time of the Veteran's death, he had been diagnosed with PTSD that was medically attributed to a stressor he experienced during his active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met, for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R §§ 3.102, 3.303, 3.304, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for PTSD, for accrued benefits purposes. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. The appellant seeks accrued benefits based upon the Veteran's claim for entitlement to service connection for PTSD, which was pending at the time of his death in April 2007. Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). While an accrued benefits claim is separate from the veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Periodic monetary benefits authorized under laws administered by the VA to which a veteran was entitled at the time of the veteran's death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due to the veteran but unpaid for a period not to exceed two years prior to the last date of entitlement will, upon the death of the veteran, be paid to the veteran's spouse, children, or dependent parent. See 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2008). The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651, 2656 (Dec. 16, 2003) (codified at 38 U.S.C. § 5121(a) (West Supp. 2005)) repealed the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This revision applies only to deaths occurring on or after December 16, 2003. As the Veteran died in April 2007, the revision is applicable to this claim. In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002); see also Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). The Veteran died in April 2007, and, at the time of his death, he had a claim pending for entitlement to service connection PTSD. In September 2007, the appellant filed her claim for accrued benefits. Thus, her claim was timely filed. Because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death, other than VA records that were constructively of record at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2010). Prior to July 13, 2010, a claimed non-combat stressor must have been established by official service record or other credible supporting evidence; the appellant's uncorroborated assertions were not sufficient to corroborate a non-combat stressor. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Cohen v. Brown, 10 Vet. App. 128 (1997). However, effective July 13, 2010, 38 C.F.R. §3.304(f) was amended to add a new paragraph, which provides as follows: 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 [PTSD] 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. 38 C.F.R. §3.304(f)(3) (2012). The Veteran had essentially asserted during his claim that he was exposed to the type of stressor (hostile military or terrorist activity) contemplated by the regulatory amendments. Accordingly, the Board finds that the amendments to 38 C.F.R. § 3.304(f) are applicable in this case. The appellant contends that the Veteran had PTSD based on alleged stressors in Vietnam. She specifically maintains that the Veteran participated in combat operations. The Veteran's service personnel records indicate that he was not awarded decorations evidencing combat. He did, however, receive the Strike/Flight Medal, as well as the Vietnam Service Medal and the Vietnam Campaign Medal for his service in Vietnam from May 1970 to April 1971. His DD-214 indicates that he had eleven months and twenty-eight days of foreign and/or sea service. His occupational specialty was listed as an automotive mechanic. His last duty assignment was listed as with the Marine Air Base Squadron 16, Marine Aircraft Group 16, 3rd Marine Amphibious Brigade. The Veteran's service treatment records do not show treatment for any psychiatric problems, including PTSD. On his entrance examination medical history, the Veteran checked that he had frequent terrifying nightmares, depression or excessive worry, and nervous trouble. The reviewing examiner noted that the Veteran had mild anxiety, but concluded that the Veteran's psychiatric evaluation was normal. A May 1971 separation examination report also included a notation that the Veteran's psychiatric evaluation was normal. At the time of his death in April 2007, the Veteran had reported various stressors. A March 2005 VA treatment report noted that, as to his military history, the Veteran reported that he served as a private in the Marine Corps from 1971 to 1972. He stated that he started out as a diesel mechanic, but that he was then made a door gunner. The examiner noted that the Veteran was vague about his combat experience. The Veteran reported that during a helicopter ride, they had picked up a young Vietnamese woman and that a soldier told him she had jumped off. The Veteran stated that he wondered if such incident ever happened. The Veteran reported that he did not know how many times he was under fire in Vietnam. The examiner, a VA psychiatrist, related diagnoses of alcohol dependence, and rule out PTSD as the Veteran was vague about his combat experiences. A November 2005 VA treatment report noted that the Veteran reported that he was in Da Nang, Vietnam from May 1970 to May 1971. He stated that he served with Marine Air Base Squadron 16 and that his official specialty was as a diesel mechanic. The Veteran indicated that he performed combat operations such as insertions, extrications, troop supply, and support in firefights. He maintained that he was exposed to rockets, mortar fire, small arms fire, and sappers. The Veteran indicated that about a month and a half in-country, a rocket hit the hooch next to his and three Marines were killed. He also reported that a buddy named "H" was killed by apparently friendly fire and that another buddy was killed in an ambush. The Veteran indicated that he finally decided to get help after denying for so long that he something was very wrong. He stated that he had held several jobs after returning from Vietnam, including as a police officer to a welder, but that he had never been able to hold onto a job. The examiner reported that the Veteran reported a range of PTSD symptoms following his service in the Republic of Vietnam that were reflective of a PTSD diagnosis. It was noted that the symptoms included rage, flashbacks, recurring dreams, memory problems, hyperalertness, startle responses, survivor guilt, numbing, sleep problems, intrusive thoughts, avoidance/isolation, and problems with crowds. The assessment, from a VA social worker and (apparently) a VA psychologist, was PTSD diagnosed since the 1980s secondary to combat zone trauma in the Republic of Vietnam. A history of alcohol use secondary to pain and symptoms was also diagnosed. A January 2007 VA treatment entry, performed by a VA physician, indicated that the Veteran had a past medical history that included PTSD due to the Vietnam War. The evidence is at least in equipoise with respect to the question of whether the diagnosis of PTSD is consistent with the circumstances of his Vietnam service. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals are experts and are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis). ORDER Service connection for PTSD, for accrued benefits purposes, is granted. REMAND The remaining issues on appeal are entitlement to service connection for a bilateral hearing loss disability and for tinnitus, both for accrued benefits purposes. VA's has not fulfilled its duty to notify and assist the appellant. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA is required to notify the appellant of what information or evidence is necessary to substantiate the claims, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence the VA will attempt to obtain. The appellant has not been specifically provided current VCAA notice as to her claims for entitlement to service connection for a bilateral hearing loss disability and for tinnitus. On remand the RO must provide corrective VCAA notice. Accordingly, the case is REMANDED for the following: 1. Ensure that all notification and appropriate development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to the issue of entitlement to service connection for a bilateral hearing loss disability, for accrued benefits purposes, and the issue of entitlement to service connection for tinnitus, for accrued benefits purposes. The notice must include an explanation as to the information or evidence needed to establish a disability rating and effective date of any increase for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Review the claims file to ensure that all appropriate development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs