Citation Nr: 1303446 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-23 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a right knee disability, to include as due to a service-connected left knee disability. REPRESENTATION Appellant (Veteran) represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to February 2002, and from January to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran appeared before the undersigned Veterans Law Judge in a hearing at the RO in March 2012 to present testimony on the issues on appeal. The Veteran initially brought his claim for service connection for a psychiatric disorder by stating he has PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The CAVC recognized that, "the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition." Id. at 5. As the appropriate psychiatric diagnosis has not yet been established in this case, the Board has broadened the issue on appeal to include any acquired psychiatric disorder, to include PTSD. The Board has reviewed the evidence of record to include the Veteran's virtual VA claims file. No evidence relevant to the issues decided below has been added to the record since the statement of the case issued in this matter in April 2010. The issues regarding service connection for psychiatric and right knee disorders 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. On March 21, 2012, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran requesting withdrawal of the appeal for service connection for bilateral hearing loss. 2. The Veteran experienced ringing in his ears during active duty and ever since. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran of service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Tinnitus was incurred during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim for Service Connection for Bilateral Hearing Loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, on March 21, 2012, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran requesting withdrawal of the appeal for service connection for bilateral hearing loss. Hence, there remain no allegations of errors of fact or law for appellate consideration of that issue. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. II. Claim to Service Connection for Tinnitus Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Inasmuch as service connection will be granted for tinnitus, there is no reason to further discuss the impact of the VCAA on this issue. Service Connection The Veteran claims service connection for tinnitus. He contends that he incurred the disorder due to acoustic trauma while serving in Iraq. The RO denied the Veteran's claim in the February 2007 rating decision on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layman is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layman is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Once competency is established, as a fact finder, the Board is also obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). In this matter, the evidence demonstrates that the Veteran experienced acoustic trauma during service, experienced tinnitus during service, has experienced a continuity of symptomatology of tinnitus since service, and currently has tinnitus. The evidence demonstrating current tinnitus is found in the Veteran's lay statements of record, which attest to experiencing tinnitus. The Board finds the Veteran competent to offer such evidence because tinnitus - ringing in the ears - is an observable symptom about which he can testify. See Layno, supra. Tinnitus is the type of disorder that is diagnosed by its unique and readily identifiable features, and is associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is not a determination "medical in nature" and is capable of lay observation). The Board also notes the March 2010 VA compensation examination report of record which notes a diagnosis of tinnitus. The evidence demonstrating in-service acoustic trauma consists of service personnel records and the Veteran's lay statements during his March 2012 testimony before the Board, and in written statements of record submitted in support of his claims. The Veteran contends that he experienced acoustic trauma and ringing in his ears in Iraq as the result of enemy missile attacks. Again, the Veteran is competent to attest to loud noises and ringing in his ears, both of which are observable, so the Board finds his contentions of probative value. Moreover, service treatment records document that the Veteran served with the U.S. Marine Corps in Iraq during a time of war, namely Operation Iraqi Freedom. The Board must now determine whether the record supports the Veteran's contention that his in-service acoustic trauma and tinnitus symptoms relate to his current tinnitus. The Board finds the evidence of record in favor of the assertion that the in-service acoustic trauma and tinnitus symptoms relate to the current tinnitus. Although the March 2010 VA examiner indicated that it would be speculative to relate the Veteran's tinnitus to his service, the Board finds that the Veteran has credibly testified to having experienced a continuity of symptomatology of tinnitus since service. 38 C.F.R. § 3.303(b). This finding is based primarily on the Veteran's testimony before the Board in March 2012, during which he indicated that he has experienced tinnitus since active duty. Again, his statements are of probative value because the crucial symptom of tinnitus - ringing in the ears - is an observable symptom. Moreover, the Board finds the Veteran's testimony to be credible regarding his in-service exposure to acoustic trauma, and the symptoms he began experiencing following that noise exposure. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current tinnitus is related to the acoustic trauma in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal of service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is granted. REMAND The Board finds remand necessary so that additional development and medical inquiry may be conducted into the Veteran's claims of service connection for an acquired psychiatric disorder and for a right knee disorder. First, the record indicates that relevant medical evidence may be outstanding. In a March 2008 statement, the Veteran indicated that he had applied for disability benefits from the Social Security Administration (SSA). No SSA records are associated with the claims file. In his April 2007 notice of disagreement, the Veteran indicated that he had been diagnosed with PTSD by a private physician. No private medical evidence is included in the claims file pertaining to any treatment the Veteran may have received for a psychiatric problem. In his March 2012 hearing, the Veteran indicated that, with regard his claimed PTSD, he had been "seeing ... for three years" a counselor named Sally at a Vet Center. A December 2007 letter from the Salem, Oregon Vet Center indicates no records were available that pertained to the Veteran. Nevertheless, based on the Veteran's assertions at the March 2012 hearing, implying that his treatment at the Vet Center began sometime in 2009, another request for evidence from the Vet Center should be made. In sum, the agency of original jurisdiction (AOJ) should attempt to obtain and include in the claims file any outstanding SSA records, private mental health treatment records, and Vet Center records. Second, the Veteran should be provided with VA compensation examinations for his service connection claims for a psychiatric disorder and for a right knee disorder. The Board notes that the Veteran underwent VA examinations into these claims in December 2006 and March 2010. However, additional medical analysis and opinion is warranted into the claims. With regard to the claim of service connection for a right knee disorder, the Veteran testified in his hearing before the undersigned that he primarily believes service connection is warranted on a secondary basis, due to his service-connected left knee disability. See 38 C.F.R. §§ 3.303, 3.310. The Board notes that the Veteran has confirmed active duty from August 2001 to February 2002, and from January 2003 to July 2003. Service connection was established for left knee patellofemoral pain disorder based in part on complaints of left knee pain in the first period of service. The Veteran underwent left knee surgery in between deployments, specifically in December 2002, and contends that when he entered his second period of service, his left knee caused him a fair amount of pain and as such, he relied more heavily on his right knee. Notably, the evidence indicates that prior to the Veteran's first period of service, he sought treatment for his right knee. A private medical report dated in July 2001indicates that he had injured his right knee a week prior, and that the working diagnosis was tendonitis. The examiner was aware of the Veteran's upcoming deployment, and indicated that the Veteran "should be ok for marine boot camp." Service treatment records are not complete, despite the RO's efforts to obtain all of the records. While an October 2000 enlistment examination is of record, there are no entrance examinations of record in conjunction with August 2001 or January 2003 deployments. A December 2006 VA examiner diagnosed bilateral patellofemoral pain disorder and stated that "it appears" that the disorder was due to service. But this opinion is of little probative value because it does not address the issue of probability, and because the reasons behind the opinion are unclear. A March 2010 VA examiner reviewed the file and took specific notice of the July 2001 private treatment record that noted that the Veteran was treated prior to entering service for swelling and discomfort. Upon examination in 2010, a diagnosis of chondromalacia was rendered. The examiner found that the Veteran had chronic chondromalacia that preexisted service, as evidenced by a "slight flare-up of chondromalacia" prior to service (presumably referring to the July 2001 event), and that because he did not receive treatment in service for the right knee, it was less likely than not that the right knee disorder was aggravated. This opinion is flawed in several respects. First, the examiner did not address the Veteran's actual 2001 diagnosis of tendonitis, as opposed to chondromalacia, nor why he believed the 2001 diagnosis was incorrect. Second, the examiner applied the incorrect criteria regarding aggravation of a pre-service disorder, indicating that it was "less likely" aggravated. The standard is whether there is "clear and unmistakable evidence" that a disorder was not aggravated. Third, the examiner did not afford any attention to the Veteran's credible lay statements of record, establishing that he experienced pain in the right knee during service, which do not require medical documentation to back up. Finally, the examiner did not address the issue of secondary service connection. For these reasons, additional examination and opinion are required prior to appellate review. With regard to the claim of service connection for a psychiatric disorder, the Veteran asserts that he incurred PTSD during service as the result of several stressors, to include missile attacks by the enemy. 38 C.F.R. § 3.304(d) and (f). His claim has been denied because the record lacks the diagnosis of a psychiatric disorder. Indeed, a December 2006 VA examiner indicated that the Veteran did not "endorse symptoms that meet criteria for a diagnosable DSM-IV mental disorder at the present time." In light of assertions by the Veteran at his March 2012 hearing regarding his stressors and his current symptomatology, and because the December 2006 examiner's findings were rendered over 6 years ago, a new examination should be conducted. The examination should inquire into whether the Veteran has PTSD, or any other psychiatric disorder that may relate to his service in Iraq. The Board notes that 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. 38 C.F.R. § 3.304(f) (2012). During the course of the appeal, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), respectively, and added a new paragraph (f)(3) that reads 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). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The Veteran's claim must be developed and considered by the AOJ in light of this new standard. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following: 1. Notify the Veteran pursuant to 38 C.F.R. § 3.159 concerning how he can substantiate a claim to service connection on a secondary basis. 38 C.F.R. § 3.310. Additionally, notify the Veteran of the amended provisions for PTSD pursuant to 38 C.F.R. § 3.304(f). 2. Attempt to obtain and associate with the claims folder any outstanding SSA records, private mental health treatment records, and/or Vet Center records identified by the Veteran during his BVA hearing. If no such records exist, the claims file should be documented accordingly. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current right knee disorder. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: a. Does the Veteran have a current right knee disability? b. If so, does clear and unmistakable evidence show that the Veteran's July 2001 right knee tendonitis was not aggravated by active service? Please refer to the tabbed July 2001 private treatment record indicating a right knee disorder prior to service. Also note that the Veteran is competent and credible to attest to experiencing pain in service. The focus of the question is whether that pain is tantamount to aggravation beyond the normal progression of the prior diagnosed tendonitis. c. If the examiner finds that clear and unmistakable evidence does not show in service aggravation of a pre-service right knee disorder, please determine whether it is at least as likely as not (50 percent or more probability) that the currently diagnosed right knee disorder is related to any in-service disease, event, or injury? Please refer to the Veteran's competent and credible lay statements claiming in-service right knee disability as a result of overburdening his right knee due to disability associated with the left knee. Also note his competent and credible assertions of pain. d. Whether it is at least as likely as not that his right knee disability was caused by the left knee disability, or has been aggravated (increased in severity beyond the natural course of the disability) by, the service-connected left knee disability. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: a. The examiner should diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). b. Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM- IV. c. If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based and state whether a stressor is related to the asserted in-service fear of hostile military or terrorist activity. 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. The examiner is advised that the Veteran's personnel records confirm service in Iraq, as a cook, and as assigned to a security force, required to delivery supplies in the field. d. Discuss whether it is at least as likely as not that any other currently diagnosed psychiatric disorder, including PTSD, was caused or aggravated by the Veteran's reported in-service stressors or any other aspect of his military service. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 6. After all the above development has been completed, readjudicate the claims on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs