Citation Nr: 1301176 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-14 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, depression, panic disorder, and bipolar disorder. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Army from September 1984 to July 1987. The Veteran served in the United States Army Reserves (USAR) from April 30, 1990 to January 28, 1992. These matters come before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO denied service connection for a bilateral hearing loss disability and depression. The Veteran appealed this rating action to the Board. The Board has re-characterized the issue of entitlement to service connection for an adjustment to include the broader issue of entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, depression, panic disorder, and bipolar disorder, as the record contains a diagnosis for each disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Further, while there are records dated in 2004 and 2005 that diagnose PTSD, those within the appeal period (i.e., April 2007 to the present) do not contain this diagnosis. Thus, inasmuch as the medical evidence of record does not show that the Veteran has been diagnosed with PTSD during the appeal period, and neither the Veteran nor his attorney argue for service connection for PTSD, the Board will not expand the claim to include PTSD. McLain v. Nicholson, 21 Vet. App. 319 (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. (CONTINUED NEXT PAGE) REMAND Unfortunately, the Board finds that the claims on appeal must be again remanded for additional development. Specifically, to obtain outstanding VA treatment records; obtain the Veteran's service treatment records from his period of USAR service; and to schedule the Veteran for VA audiological and psychiatric examinations to determine the etiology of his current right ear hearing loss and acquired psychiatric disabilities. (i) VA treatment records On VA Form 21-526(b), Veteran's Supplemental Claim for Compensation, dated and signed by the Veteran in mid-July 2011, he indicated that he had continued to seek treatment for a "mental disorder" and bilateral hearing loss from the Evansville, Indiana VA Medical Center. Records from the Evansville, Indiana Community Based Outpatient Clinic (CBOC), dated from July 2007 to April 2008, are of record; however, more recent records are absent. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, as outstanding treatment records from the above-cited VA CBOC may contain evidence pertaining to the etiology of the Veteran's right and left ear hearing loss and acquired psychiatric disabilities, the RO/AMC should attempt to obtain them on remand. (ii) Reserve Records Following his active military service from September 1984 to July 1987, the Veteran served in the USAR from April 30, 1990 to January 28, 1992. Service treatment records from the Veteran's period of active military service in the United States Army include a March 1989 USAR Quadrennial examination report, reflecting that he had defective hearing in his right ear. In this regard, an audiologic evaluation of the right ear contained an auditory threshold of 25 at 4000 Hertz. See Hensley v. Brown, 5 Vet. App. 155 (1993) (noting that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385)). Thus, the Veteran had some degree of right ear hearing loss within two (2) years of discharge from active service in July 1987. There are, however, no other service treatment records from the Veteran's period of service in the USAR of record. Thus, on remand, the RO/AMC should obtain any missing service treatment records from the Veteran's period of USAR service from April 30, 1990 to January 28, 1992 from the National Personnel Records Center (NPRC), or any other appropriate agency. A February 1995 statement from the Veteran suggested three possible locations for his records. (iii) VA examinations The Veteran seeks service connection, in part, for hearing loss and acquired psychiatric disabilities. The Board will separately discuss the need for VA examinations with respect to each of these disabilities in the following paragraphs. (a) Hearing Loss The Veteran contends, in part, that he has hearing loss disability that is the result of in-service acoustic trauma while serving as a tank crewman with only intermittent ear protection. (See March 2008, Statement in Support of Claim, dated and signed by the Veteran in late March 2008). He has denied any post-service occupational and recreational noise exposure. (See June 2008 VA audiological examination report). As the Veteran's DD 214 from his period of active military service in the United States Army reflects that his military occupational specialist was an armor crewman, the Board finds that it has little reason to doubt the credibility of the Veteran's assertions of exposure to acoustic trauma. In-service noise exposure is thereby conceded. 38 U.S.C.A. § 1154(a) (West 2002). A June 2008 VA audiometric examination revealed that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. Thus, the crux of the Veteran's claim for service connection for hearing loss disability rests on whether the competent and probative evidence of record establishes an etiological relationship between this disability and his period of active military service in the United States Army. As noted above, the Veteran's service treatment records from his period of active military service include a March 1989 Quadrennial examination from his USAR service. The March 1989 audiogram contained an auditory threshold of 25 at 4000 Hertz of the right ear, which is indicative of defective hearing . Hensley, supra. On an accompanying Report of Medical History, the Veteran denied having had hearing loss. The post-service evidence of record includes a June 2008 VA audiological examination report. After a review of the claims files, to include the above-cited service treatment records and history of in-service noise exposure that is consistent with that previously reported in the preceding paragraphs, the VA examiner concluded that "[i]t is less likely as not that the hearing loss displayed today is caused by or a result of this veteran's noise exposure while on active duty." The VA examiner reasoned that the Veteran's hearing was within the normal range, bilaterally, two years after his release from active duty. (See June 2008 VA audiological examination report). The Board finds that the June 2008 VA examiner's opinion holds limited probative value with respect to the Veteran's because it is based on an inaccurate factual premise, namely that he did not have any defective hearing in that ear upon examination in March 1989. As noted above, the Veteran's March 1989 audiogram contained an auditory threshold of 25 at 4000 Hertz in the right ear, which is indicative of defective hearing in that ear. Hensley, supra. The examiner also failed to take into consideration the Veteran's lay history of noise exposure and hearing loss since that time. Further, since that examination was conducted, the Veteran has provided a statement from C.L.B.G., an apparent family members, who states she noticed a problem with his hearing after he returned from service. Accordingly, as the June 2008 VA examiner's opinion is based on an inaccurate factual premise, the Veteran should be scheduled for a new audiological examination of his right ear, to include one that properly addresses the defective hearing of the right ear found at the March 1989 USAR Quadrennial audiometric examination. Id; see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide a medical examination, the report must be adequate for rating purposes). (b) Acquired Psychiatric Disability The Veteran contends that his acquired psychiatric disorder (originally claimed as depression) had its onset during his period of active military service in the United States Army. The Veteran's attorney maintains that the Veteran's treatment for alcohol dependence and clinical findings of a depressed mood during his period of active military service were the initial manifestation of his currently diagnosed schizoaffective disorder. (See Veteran's attorney's March 2010 written argument to VA). He argues that his alcohol dependence and depressed mood were precursors to his current psychiatric disorder. The Veteran has been diagnosed with several acquired psychiatric disorder during the appeal period. The more recent medical evidence of record reflects that he was diagnosed with bipolar disorder, alcohol dependence, schizoaffective disorder, and panic disorder with agoraphobia. (See VA treatment reports, dated March and April 2008). Thus, the crux of the Veteran's claim for an acquired psychiatric disorder is turns on whether the competent and probative evidence of record supports an etiological relationship between these disorders and his period of active military service in the United States Army. The Veteran's service treatment records from his period of active military service disclose that he received treatment for alcohol abuse beginning in May 1985. In June 1986, the Veteran reported to sick call at the request of his unit for a mental evaluation. At that time, the examining clinician noted that the Veteran had been enrolled in an alcohol abuse program, but that his problem was increasing. It was noted that the Veteran had received an Article 15 for missing an alert, an infraction that was directly related to his alcohol abuse. The Veteran stated that he had a "depressed affect." The examiner noted that the Veteran seemed mildly depressed and worried and that he was in search of help in coping with his alcohol problem. In August 1986, the Veteran was admitted into an intensive six (6) weeks drug and alcohol rehabilitation program. At discharge from the program in late September 1986, a mental status evaluation of the Veteran was essentially normal. It was noted that the Veteran had remained sober and that he was free of alcohol or illicit drugs. A discharge diagnosis of alcohol dependence was entered. A March 1989 Quadrennial report for the United States Army Reserves reflects that the Veteran was found to have been psychiatrically "normal." On an accompanying Report of Medical History, the Veteran denied having had depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping. In light of the above-cited STRs showing treatment for alcohol dependence with a clinical notation of a depressed mood, post-service medical evidence showing that the Veteran has been diagnosed with several acquired psychiatric disorders, and the Veteran's attorney's assertion that his in-service alcohol abuse was the initial manifestation of his currently diagnosed schizoaffective disorder, the Board finds that a VA psychiatric examination with opinion as to the etiology of any currently diagnosed acquired psychiatric disorder(s) should be secured on remand. The Board notes that while alcohol abuse may not be itself be service connected, it may be considered if it is medically determined that his psychiatric disabilities precipitate his substance abuse. See Allen v. Principi, 237 F.3d 1368, 1370 (Fed. Cir. 2001). On remand, the VA examiner should opine as to whether his psychiatric disabilities precipitated his alcohol abuse. The question concerning the relationship, if any, between the Veteran's diagnosed psychiatric disorders and his period of active military service is one that must be addressed by an appropriately qualified medical professional. 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, the case is REMANDED for the following action: 1. Obtain all treatment records of the Veteran from the Evansville, Indiana CBOC, dated from April 2008 to the present. If such records are unavailable, the RO/AMC must indicate the steps that were taken to obtain these records and provide the Veteran and his attorney an opportunity to provide them. 2. The RO must make the necessary requests for all service treatment records pertaining to the Veteran's service with the United States Army Reserve from April 30, 1990 to January 28, 1992. The Veteran's Army Reserve service treatment records must be requested from the National Personnel Records Center (NPRC); the United States Army Reserve Control Group in St. Louis, Missouri (see January 1992 letter from Department of the Army's Reserve Personnel Center, St. Louis, Missouri to the Veteran); and any other appropriate agency. Notably, the Veteran has indicated that his records could be held with HHD 1BN, 398 REGT, 2 BDE, 100 (TNG) in Owensboro, KY. All attempts to obtain these records should be documented and associated with the claims files. Efforts to obtain the Veteran's Army Reserve service treatment records must be detailed and he must again be provided with notice of alternative evidence that he could submit in light of missing STRs and notice that the records could not be obtained pursuant to 38 C.F.R. § 3.159(e) (2012), if the records are not obtained. 3. After any additional VA treatment and reserve records of the Veteran are obtained and associated with the claims files pursuant to directives 1 and 2, schedule the Veteran for a VA audiological examination by an appropriate specialist. The purpose of the examination is to determine the etiology of the Veteran's hearing loss disability for VA compensation purposes. The claims files must be made available to and pertinent documents therein reviewed by the examiner in connection with the examination. Moreover, a notation to the effect that this record review took place must be included in the examination report. All studies or tests deemed necessary by the examiner should be performed. After reviewing the Veteran's claims files, to include his credible history of noise exposure, a March 1989 United States Army Reserve Quadrennial report, reflecting that the Veteran exhibited defective hearing in the right ear of 25 decibels at 4000 Hertz, consideration of the lay statements concerning continuity of symptomatology, and audiological examination of the Veteran, the examiner should discuss the nature and extent of the Veteran's hearing loss disability. Specifically, is it at least as likely as not (a 50 percent probability or higher) that the Veteran's hearing loss disability had its onset in service or within one year of service discharge or is otherwise etiologically related to his active service? It is essential that the VA examiner offer a detailed explanation discussing why and how all conclusions and opinions were reached. This discussion should include reference to specific evidence in the Veteran's claims files, such as the above-cited March 1989 USAR report; June 2008 VA examiner's opinion; and, the Veteran's lay assertions, as indicated. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. After completing the requested development in directives 1-3, the RO/AMC should arrange for the Veteran to undergo a VA psychiatric examination by an appropriate specialist to determine the nature and likely etiology of the Veteran's acquired psychiatric disorder(s). The claims files must be made available to and pertinent documents therein reviewed by the examiner in connection with the examination. Moreover, a notation to the effect that this record review took place must be included in the examination report. All studies or tests deemed necessary by the examiner should be performed. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner is requested to identify all current diagnoses. For each psychiatric diagnosis identified, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that it had its onset during his period of active military service in the United States Army (i.e., September 1984 to July 1987), became manifest to a compensable degree within a one-year period following his discharge from active military service in July 1987, or is otherwise causally related to any event or circumstance of his period of active military service other than alcohol abuse. Were any of the symptoms demonstrated in service a precursor to his present psychiatric disability? The examiner should specifically address whether the Veteran's substance abuse problems were indicative of a psychiatric disorder at that time. In making this determination, the examiner is asked to carefully consider and address the inpatient service treatment records during service showing treatment for alcohol abuse with symptoms involving depression. The examiner is also asked to carefully consider the Veteran's own statements regarding the onset and continuity of his symptomatology since service. It is essential that the examiner offer a detailed explanation discussing why and how all conclusions and opinions were reached. Citation and discussion of any supporting medical treatise would be helpful. This discussion should include reference to specific evidence in the Veteran's claims files, including the in-service and post-service medical records, and the Veteran's lay assertions, as indicated. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 5. Then, after conducting any additional development that is deemed warranted, readjudicate the Veteran's claims for service connection for right and left ear hearing loss and acquired psychiatric disabilities (originally claimed as depression). If any benefit on appeal remains denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The Veteran has the right to submit additional evidence and argument on the 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 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. 2012). _________________________________________________ MICHAEL A. HERMAN 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) (2012).