Citation Nr: 1304464	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  12-04 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a psychiatric disorder, including PTSD and/or depressive disorder.  

3.  Entitlement to service connection for testicular cancer, including as due to herbicide exposure in service.  

4.  Entitlement to service connection for benign prostate hypertrophy (BPH), claimed as prostate surgery, also including as due to herbicide exposure in service.

5.  Entitlement to a compensable rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion
WITNESS AT HEARING ON APPEAL

The Appellant-Veteran


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to August 1968.

This appeal to the Board of Veterans' Appeals (Board) is from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for testicular cancer and BPH, confirmed and continued a previous denial of service connection for PTSD, and confirmed and continued a 0 percent (noncompensable) rating for bilateral hearing loss.  

In July 2012, as support for these claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.  During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it.  See 38 C.F.R. § 20.1304 (2012).  Even more recently, in August 2012, he submitted more evidence in support of his petition to reopen the claim for service connection for PTSD, again waiving his right to have the RO, rather than the Board, consider it in the first instance.  Id.


In the August 2011 rating decision at issue and again in the February 2012 statement of the case (SOC), the RO addressed the claim for service connection for PTSD on the merits.  Regardless of that, however, the Board has a legal obligation under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to first address the question of whether there is new and material evidence to reopen this claim because, if there is not, the Board does not have jurisdiction to adjudicate this claim on its underlying merits, meaning on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).  If the Board finds that new and material evidence has not been submitted, then its analysis must end, as further analysis is neither required nor permitted.  See Barnett, 83 F.3d at 1383-4.  McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); VAOPGCPREC 05-92 (March 4, 1992).  But, conversely, a finding of new and material evidence since the last final and binding denial of this claim would require the reopening of this claim and the readjudication of it on its underlying merits.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  So this will be the Board's method of analysis of this claim.

The Board also sees that, in his October 2010 petition to reopen this claim, the Veteran indicated he is claiming entitlement to service connection specifically for PTSD.  And, as mentioned, in the August 2011 rating decision at issue, the RO continued to deny service connection for PTSD.  Nevertheless, given the evidence of record, including showing additional diagnoses of depressive disorder, the Board is recharacterizing this claim to include all mental disorders that have been diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record).

Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection.  The Clemons Court found that, where a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.

The Board has advanced this appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In this decision, because there is the required new and material evidence, the Board is reopening the claim for service connection for PTSD or other mental illness, including depressive disorder.  But rather than immediately readjudicating this claim on its underlying merits, the Board instead is remanding this claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.   The Board also is remanding the remaining claims for service connection for testicular cancer and BPH and for a compensable rating for the bilateral hearing loss.


FINDINGS OF FACT

1.  In a December 2007 decision, the Board denied service connection for PTSD.

2.  Additional evidence since submitted or otherwise obtained, however, is not cumulative or redundant of the evidence considered in that prior decision, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating this claim.


CONCLUSIONS OF LAW

1.  The Board's December 2007 decision denying service connection for PTSD is final and binding based on the evidence then of record.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012).

2.  But there is new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Here, though, since the Board is reopening the claim, and further developing it on remand before actually deciding the claim on its underlying merits, there is no need at this juncture to discuss whether there has been compliance with these 
duty-to-notify-and-assist obligations.  This is better determined once the additional development of the claim has been completed on remand.

Factual Background and Analysis

VA may reopen and review a claim that has been previously considered and denied if there is new and material evidence concerning the claim since the prior decision.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).  


For petitions to reopen, as here, filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

The United States Court of Appeals for Veterans Claims (Court) has found that the post-VCAA version of 38 C.F.R. § 3.156(a) created a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id., at 120.  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers 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 other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.


Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be established for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  See 38 C.F.R. § 3.303(d).  

Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s); and credible supporting evidence that the claimed 
in-service stressor(s) actually occurred.  38 C.F.R. § 3.304(f).   

The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy."  See Gaines v. West, 11 Vet. App. 353, 359 (1998).  Participation in combat, a determination that is to be made on a 
case-by-case basis, requires that a Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003).  See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004).

If VA determines that a Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service."  See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).


If, however, the alleged stressor is not combat related, then the Veteran's lay testimony, alone, is insufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain evidence corroborating his testimony or statements.  See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown,, 9 Vet. App. 389, 395 (1996).  See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994).

VA amended its adjudication regulations governing service connection for PTSD during the pendency of this appeal by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor when it is related to "fear of hostile military or terrorist activity."  75 Fed. Reg. 39 843 (July 13, 2010), now codified at 38 C.F.R. § 3.304(f)(3) (2012).  This new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, confirm the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the appellant's service; and that the Veteran's symptoms are related to the claimed stressor.  The revisions apply to claims, as here, which were appealed before July 13, 2010, but not yet decided by the Board.

Turn back now to the facts and procedural history of this case.  In April 2002, the Veteran filed a claim for service connection for PTSD.  In a September 2002 rating decision, the RO denied service connection for PTSD on the basis that the evidence did not show a confirmed diagnosis of PTSD, nor was there adequate evidence to establish that a stressful experience occurred.  In a January 2004 rating decision, the RO again denied service connection for PTSD, finding that there continued to be no confirmed diagnosis of PTSD.  The Veteran perfected an appeal of the January 2004 denial of service connection.  In a December 2007 decision, the Board denied service connection for PTSD, finding that the probative weight of the evidence did not support a finding that his symptoms or stressors met the criteria for a diagnosis of PTSD and there was no credible evidence corroborating the Veteran's alleged in-service stressors.  


The evidence of record at the time of the December 2007 Board decision included the Veteran's service treatment records, which are negative for psychiatric complaints or findings.  Clinical evaluation of the psychiatric system was normal on separation examination in August 1968.  Also of record were the Veteran's service personnel records, which reflect that he served in Vietnam from August 1967 to August 1968.  His Form DD 214 lists his military occupational specialty as a field artillery unit commander.  

At the time of the December 2007 Board decision VA treatment records dated from June 2001 to July 2005 reflected psychiatric diagnoses rendered during individual therapy, including major depressive disorder with psychotic features, depression not otherwise specified, schizoaffective disorder, and PTSD.  Group therapy treatment notes and a June 2001 history and physical examination reflect a diagnosis of PTSD.  A July 2001 note from a social worker indicates that the Veteran was in artillery and served in Cambodia and Vietnam, saw trauma in combat, and suffered survivor guilt and feelings of inadequacy.  The social worker noted that the Veteran had been in treatment for PTSD in the past, and listed diagnoses of PTSD and polysubstance dependency in recent remission.  

The Veteran was afforded a VA examination to evaluate his claimed PTSD in September 2002.  He described in-service stressors, including burning villages and shooting animals as a forward observer for the artillery on search-and-destroy missions.  He added that they occasionally ran into the enemy and had firefights and were exposed to some sniper fire.  He also described an incident in which he was "nearly choked to death" in a bunker because of smoke.  He insisted that someone in his company had tried to kill him; although he had no evidence, had never been able to explain this, and had no reason why someone would want to hurt him.  The examiner stated that it was difficult to get a clear picture of the difficulties the Veteran was experiencing, but that he claimed to have nightmares of the described fire, experienced sleep disturbances, night terrors, survivor guilt, anxiety, and depression.  The examiner opined that the overall clinical presentation pattern of symptoms was consistent with schizoaffective disorder.  The examiner commented that, while the resident had rendered a diagnosis of PTSD, the Veteran failed to meet the DSM-IV criteria for that diagnosis.  While psychological testing was performed in conjunction with this examination, the examiner noted that the Veteran sat with a service-connected Vietnam veteran friend who coached him, so, the test scores were invalidated (and would have been questionable regardless).  The Axis I diagnoses were schizoaffective disorder, not well controlled by medication, unrelated to military service, and polysubstance dependence, in full remission.  The examiner concluded by noting that the Veteran did not meet DSM-IV diagnostic criteria for the diagnosis of PTSD either in terms of specificity of identified stressors to meet criterion A, or symptoms consistent with the diagnosis.  

The Veteran underwent another VA examination to evaluate claimed PTSD in September 2003.  He described in-service stressors related to his Vietnam service, specifically, participating in ambushes and patrols and burning villages down.  When asked for more specific events which were traumatic, the Veteran responded "the first time we burned a village down" and indicated that this occurred near Duck Pho in approximately August to September 1967.  He also described a villager being shot in the head, but did not provide additional details.  The Veteran further reported that he was with a unit that required forced extracted from Firebase Yerks and had to leave half of his equipment behind.  He reported that, in approximately May 1968 around Song Bay, an attempt was made on his life when he woke up in his bunker to discover that the straw inside was on fire.  He described dense smoke inside the bunker but stated that he was able to get out.  His cited the fact that there were no enemies in the camp as the basis for his belief that this was an intentional act by one of his men.  

After performing a mental status examination, the examiner commented that the Veteran's first reported stressors were relatively vague and did not meet criterion A of a DSM-IV diagnosis of PTSD.  Additionally, the reported stressor of an individual making an attempt on his life was not well explained and, in the opinion of the examiner, was likely a manifestation of a delusional thought process, as well as paranoid ideation.  The examiner noted that the Veteran did not endorse necessary re-experiencing, avoidance, or arousal symptoms necessary for the diagnosis of PTSD.  Psychometric testing was not performed because of the likely practice effects of retesting in light of prior testing in September 2002.  The Axis I diagnoses were schizoaffective disorder and polysubstance dependence currently in full and sustained remission per the Veteran's report.  The examiner concluded by noting that the Veteran did not meet the criteria for a diagnosis of PTSD either in terms of a verifiable stressor or symptom presentation.  

Also of record at the time of the Board's December 2007 decision was a September 2003 stressor statement, in which the Veteran listed three stressful incidents:  being on long range search and destroy reconnaissance patrols from August to October 1967 in Duck Pho, experiencing much fighting and being part of a forced extraction at Firebase Yerks in 1968 along the Cambodian border, and an attempt on his life by one or two of his own men in 1968 in Song Bay when the straw in his bunker was set on fire.  He elaborated that he experienced many firefights and witnessed burning of villages and wounding and killing of civilians during the search and destroy patrols.  He added that there was much fighting at Firebase Yerks.  

In his December 2004 VA Form 9, the Veteran again described his bunker being set on fire and reported suffering heavy casualties during his time at Firebase Yerks.  He stated that he did not remember much of the rest of his tour.  

In a January 2005 letter, the Veteran's psychiatrist from Allegheny General Hospital, Dr. P.V.N., wrote a letter in support of the Veteran's claim for compensation for combat-related PSD.  Dr. P.V.N. reported that he had treated the Veteran on and off since 1996.  He stated that the Veteran had described experiencing multiple episodes of trauma which conceivably could have precipitated PTSD.  Specifically, he described an attempted murder when a man serving under his command threw a smoke/incendiary grenade into his bunker while he was sleeping.  He also reported that the firebase at which he was serving was overrun by Vietcong and he and other soldiers had to be evacuated by helicopter.  He described being nearly killed by hostile fire several times as a forward observer, and saw several comrades killed by mortar and rocket attacks.  The psychiatrist stated that the Veteran's PTSD symptoms included re-experiencing with flashbacks, intrusive thoughts of Vietnam experiences, and intense dreams.  He also noted avoidance symptoms, hyperarousal, vivid memories, and depressive symptoms.  He noted the Veteran's report that he suffered depression only after his service in Vietnam.  

In light of this letter, the Veteran was afforded a third VA examination to evaluate his claimed PTSD in March 2005.  He described five stressors related to his Vietnam service, the first being completely failing all missions in Vietnam.  He also described being forcibly extracted at Firebase Yerks, where bodies were hung from trees and brought up from the tree line.  Thirdly, he reported suffering from smoke inhalation after his bunker was set on fire by one of his own men.  He further stated that he witnessed atrocities while serving as a forward observer.  Finally, he described as stressful failing his own men in Vietnam.  

When asked about direct combat exposure regarding his time at Firebase Yerks, the Veteran reported, "it wasn't that we were fired upon, but just felt like we weren't doing our job."  He also admitted that he did not directly witness bodies hanging from trees.  Rather, the examiner commented that it appeared that the Veteran remained largely in camp with the battery and he and his men were never directly involved in combat and were not directly fired upon.  He added that the forcible extraction had to do with the breakdown of the perimeter, but the Veteran and his men were extracted before enemy forces reached the camp, although somewhat hurriedly.  The Veteran did report that some equipment had to be dropped and left because it was too heavy.  

Regarding the incident of his bunker being set on fire, the examiner confronted the Veteran about his assertion that an incendiary or explosive device was thrown into his bunker, as such a device in a small space would have severely wounded or killed the Veteran.  The Veteran acknowledged this, and stated that all he knew was that the straw was on fire and he had no evidence that anyone had intentionally set the fire.  He had no evidence to suggest that the fire was anything but an accident, and the examiner opined that this incident was only traumatic insofar as the Veteran had interpreted it as an attempt on his life, without any evidence to validate this interpretation.  

As regards his time as a forward observer, upon questioning, the Veteran admitted that he served in this role for only one to two days, and his reports of extensive killings, atrocities, and village burnings appeared to be largely information he had heard from others, and not incidents he had directly observed.  The examiner commented that, in contrast to what he had reported to Dr. P.V.N., the Veteran admitted spending almost all of his time on firebases in support and he had virtually no significant forward observation experience.  

The examiner concluded that, overall, the Veteran was not able to describe any specific traumatic experiences with any kind of reliable or verifiable detail.  He noted that, in the past, the Veteran had described atrocities and traumas related to his alleged forward observation duties, which turned out to be virtually nonexistent.  Moreover, the other major event, the attempt on his life in a bunker, appeared to be largely an imagined threat, and the Veteran admitted that his assertion that an incendiary device was used was false.  

The Axis I diagnoses following examination were depressive disorder, moderate, with occasional psychotic features, not related to PTSD, and polysubstance dependence, by history, currently in controlled remission.  The examiner concluded by stating that, while various clinicians at the Highland Drive VA Medical Center (VAMC) had given the Veteran a diagnosis of PTSD, this was based solely on his reported symptoms and reported stressors, which appeared to have been exaggerated or inaccurate.  The examiner also addressed the January 2005 letter from Dr. P.V.N., noting that the current examination discounted the traumatic episodes reported in that letter.  The examiner concluded that there was no evidence of any kind suggesting that the Veteran had experienced a trauma or experience consistent with criterion A of DSM-IV for a diagnosis of PTSD.  Moreover, his reported symptoms had generally been more consistent with depression and, at times, schizoaffective symptomatology, rather than PTSD symptomatology.  He added that the Veteran had a rather pervasive schizotypal personality disorder in addition to clear depressive symptoms, neither of which appeared to be related to his military service.  

In a February 2006 letter, the Veteran's therapist from the Veterans Resource Center in McKeesport, Pennsylvania wrote that the Veteran had been seen weekly for individual therapy since April 2005 and, on intake, had presented various symptoms consistent with PTSD.  She stated that assessment utilizing the Mississippi Scale (revised) indicated clinical implications for PTSD.  She noted that the Veteran's unit in Vietnam encountered enemy attacks on several occasions and stated that the most significant traumatic experience related by the Veteran was when an incendiary device set his bunker on fire.  She reported that the Veteran's current diagnostic impressions included PTSD, major depressive disorder (recurrent), alcohol dependence (sustained full remission), and polysubstance dependence (full sustained remission).  

In the December 2007 decision, the Board found that the weight of the evidence preponderated against a finding that the Veteran met the criteria for a diagnosis of PTSD.  The Board found that, despite diagnoses of PTSD being noted in a number of treatment records in the claims file, these diagnoses appeared to be entirely based on the Veteran's own self-report of his history without any review of the claims file, including his service treatment records.  The Board concluded that a diagnosis of PTSD based on uncorroborated stressors was not probative.  The Board further noted that the Veteran's treatment records were inconsistent in that he was sometimes diagnosed with PTSD, while at other times no diagnosis or history of PTSD was indicated at all.

The Veteran did not appeal or seek reconsideration of the December 2007 Board decision, and no other exception to finality applies.  Thus, that decision is final as to the evidence then of record.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.  

In October 2010, the Veteran filed his petition to reopen this claim for service connection for PTSD.  The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claim is the December 2007 Board decision, denying service connection for PTSD.  


For purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  This presumption only applies when making this determination as to whether the evidence in question is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  So, essentially, this presumption of credibility "dissolves" once the claim is reopened and decided on its underlying merits.  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").  VA also does not have to blindly accept, as credible, assertions that are beyond the competence of the person making them.

Evidence associated with the claims file since the December 2007 Board decision includes VA treatment records reflecting diagnoses of and treatment for PTSD.  A psychiatry note from July 2010 reflects that the Veteran discussed being in a village and having to shoot a woman who was holding two unclipped grenades before she could throw them at the platoon.  The assessment was PTSD.  

In February 2011, the Veteran submitted a stressor statement in which he described meeting the battery commander of the 6/27th artillery in August 1967.  He stated that he accompanied this captain to a rice paddy outside of the perimeter of the encampment where a farmer was working about 35 to 40 meters away and watched the captain shoot the farmer.  He added that, later, he was standing face to face talking to the captain when he was run over by a truck heading in country and killed instantly.  The Veteran stated that this truck missed him by only about a foot.  

In an August 2012 letter, the Veteran's VA psychiatrist, Dr. B.F., wrote that he had been treating the Veteran since May 2006, and his clinical examination and reported symptoms were consistent with a diagnosis of combat related PTSD.  He stated that, in an August 2012 appointment, the Veteran cited three significant combat-related stressors about which he continued to have intrusive memories, feelings of guilt, and nightmares.  Specifically, he described an incident in which his captain had him follow him and observe him fire an RPG at an unsuspecting elderly civilian.  He also reported a combat action in which he was in charge of a fire base forced extraction and, as they were being air lifted he witnessed two soldiers who had inadvertently been left behind.  Thirdly, he reported a combat patrol of a village in which he witnessed a female villager in the doorway of a hooch holding two grenades with her daughter below her.  The Veteran stated that he shot the woman, leading the grenades to go off killing her and her daughter.  Dr. B.F. opined that these three incidents, alone, constituted major traumatic events consistent with those that can lead to PTSD.  He stated that, in his professional opinion based on the Veteran's clinical presentation to him as his treating psychiatrist since 2006, the Veteran suffered from chronic and severe combat related PTSD directly related to his service in Vietnam.  

At the time of the December 2007 Board decision, the Veteran had reported numerous stressors related to his Vietnam service; however, he had not described stressors of witnessing a captain shoot a farmer or of shooting a woman holding grenades, causing the death of the woman and her daughter.  

The newly reported stressors are certainly new, in that they were not of record at the time of the December 2007 Board decision.  The credibility of these reported stressors is presumed.  See Justus, 3 Vet. App. at 512-513.  The August 2012 letter from Dr. B.F., which is also new, indicates that the Veteran has PTSD related to these claimed stressors.  

The foregoing evidence which was associated with the claims file subsequent to the December 2007 Board decision is material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, that is, a current diagnosis of PTSD related to an in-service stressor.  This evidence raises a reasonable possibility of substantiating the claim.  Thus, the claim must be reopened.  As the Court explained in Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), new evidence is sufficient reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the disability at issue, even where this additional evidence is not enough to convince the Board to grant the claim.  See also Shade, 24 Vet. App. at 117.

Therefore, as new and material evidence has been received, the claim for service connection for PTSD is reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.


ORDER

New and material evidence having been received; the claim of entitlement to service connection for PTSD is reopened.


REMAND

This claim for mental illness, as well as the remaining claims, requires further development before being decided on their underlying merits.

The Veteran has been afforded several VA examinations to evaluate his claim for service connection for PTSD.  As discussed above, the September 2002, September 2003, and March 2005 VA examiners each determined that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD; rather, they rendered Axis I diagnoses which included schizoaffective disorder and depressive disorder.  

The Veteran was also afforded a VA examination to evaluate his claimed PTSD in January 2011.  The examiner acknowledged that the Veteran had received a diagnosis of PTSD from several providers, but stated that it was unclear as to what criterion A stressor or other symptoms the Veteran reported to justify that diagnosis, as this information was not contained within the treatment records.  The Veteran described three in-service stressors to the VA examiner.  First, he reported that he struck up a friendship with the battery commander after arriving in Vietnam and that he saw the commander shoot a farmer with a grenade launcher.  Second, he described an incident in which he saw a woman standing in the doorway of a hooch with a child at her feet and a grenade in each hand.  He reported that he shot the woman and the grenade exploded, killing her and her child.  Third, he reported that, while at Firebase Yerks, he was forcibly extracted by air and saw some soldiers left on the ground that never made it out.  The examiner commented that the Veteran's description of his stressors as compared to the prior VA examinations was inconsistent and that he did not report the incident which he had previously reported to be most stressful.  This omission and the inconsistencies called into question the veracity of the Veteran's report or his memory of events which, according to the examiner, was inconsistent with a diagnosis of PTSD.  The Axis I diagnoses following examination were depressive disorder, not otherwise specified, unrelated to military service, and alcohol dependence, in remission, unrelated to military service and predates military service.  The examiner opined that the Veteran did not report any specific events during the examination which met criterion A for a diagnosis of PTSD.  Furthermore, he noted that the Veteran only reported a few symptoms directly attributable to PTSD and did not report the full symptom constellation required for the diagnosis and, thus, he did not meet the diagnostic criteria for PTSD.  He added that there was no evidence to suggest that the Veteran's fear of hostile military or terrorist activity was related to or causal for his current symptoms.  Rather, his reported symptoms were most consistent with a depressive disorder.  He reiterated that neither the Veteran's depressive disorder nor his alcohol dependence was related to his military service.  

As discussed in the introduction, the claim for service connection for a psychiatric disorder has been expanded consistent with Clemons.  Because VA undertook to provide a VA examination to evaluate the claimed psychiatric disorder, the Board must ensure that such an examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  If not, it is incumbent on the Board to return the examination report as inadequate so it may be corrected by obtaining all necessary additional information.  See 38 C.F.R. § 4.2.

While the September 2002 VA examiner commented that schizoaffective disorder was unrelated to military service; the March 2005 VA examiner opined that the Veteran's depressive symptoms did not appear to be related to military service; and the January 2011 VA examiner opined that the Veteran's depressive disorder was not related to his military service, none of these examiners provided rationales for their opinions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl, 21 Vet. App. at 125 (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion").   

Accordingly, in light of the expansion of the claim, the claims file should be returned to the January 2011 VA examiner to obtain a supplemental opinion that is supported by clearly stated rationale.  The AMC/RO should arrange for the Veteran to undergo another VA compensation examination only if the examiner who performed this January 2011 VA examination is unavailable to provide this further comment or the person designated is unable to provide this necessary comment without actually examining the Veteran.

While the January 2011 examiner provided an explanation for his opinion regarding PTSD, additional pertinent evidence has since been associated with the claims file.  Specifically, in a November 2010 letter, the Veteran's private counselor, J.P., wrote that the Veteran had displayed chronic PTSD symptoms that fell into the category of combat and war trauma and had described and relived multiple experiences of trauma (threats of death and serious injury) while service in Vietnam.  She provided specific examples of these traumatic episodes and discussed PTSD symptoms she had observed in working with him for over 11 years.  Additionally, as discussed above, in an August 2012 letter, the Veteran's psychiatrist at the University Drive VAMC opined that, based on his clinical presentation, the Veteran suffered from chronic and severe combat related PTSD directly related to his service in Vietnam.  In providing the requested opinion, the examiner should also consider and address these letters.  

As regards the claim for a compensable rating for hearing loss, disability ratings for hearing impairment are derived from the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The provisions of 38 C.F.R. § 4.85 (2012) establish eleven auditory acuity levels from I for essentially normal hearing to XI for profound deafness.  Tables VI and VII as set forth in 38 C.F.R. § 4.85(h) are used to calculate the rating assigned.  Table VIa is used to assign a rating based on puretone average alone when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86, which concerns exceptional patterns of hearing impairment.  See also 38 C.F.R. § 4.85(c).

An examination to measure hearing impairment for VA compensation purposes must be performed by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be performed without the use of hearing aids.  38 C.F.R. § 4.85(a).

The Veteran was afforded a VA audiological evaluation in January 2011 to evaluate his service-connected hearing loss disability.  Based on the results of audiometric testing on that date, the RO continued the noncompensable rating for hearing loss in the August 2011 rating decision.  In support of his claim for a higher rating, the Veteran has submitted records of VA audiological treatment dated in June 2012 which reflect a worsening of his hearing loss disability since January 2011.  However, the results of audiological testing performed at the VAMC in June 2012 cannot be used to evaluate the Veteran's hearing loss disability under VA standards, as word recognition testing was completed using NU6 stimuli with a female speaker, presented using recorded material, as opposed to using the Maryland CNC word list, as required by 38 C.F.R. § 4.85(a).  

The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995).  

Accordingly, to ensure that the record reflects the current severity of the Veteran's hearing loss, the Board finds that a more contemporaneous examination, responsive to the pertinent rating criteria, is needed.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey, 6 Vet. App. at 381 (an examination too remote for rating purposes cannot be considered contemporaneous).

In addition to the foregoing, the record reflects that there are outstanding records which are potentially pertinent to the claims remaining on appeal.  

During individual therapy at the Highland Drive VAMC in July 2001, the Veteran reported that he had received therapy for PTSD at that facility approximately six years earlier.  The September 2002 VA examiner noted that the Veteran had been treated at the Highland Drive VAMC from the early 1990s, and had consistently been diagnosed with schizoaffective disorder and/or major depressive disorder, with only passing mention of some symptoms of PTSD. Most recently, in his August 2012 letter, the Veteran's VA psychiatrist reported that he had seen him for treatment earlier that month.  While treatment records from the VA Pittsburgh Healthcare System, to include the Highland Drive, University Drive, and Aspinwall campuses, dated from June 2001 to June 2012 have been associated with the claims file, the aforementioned records indicate that earlier and more recent treatment records are available.  As any records of VA treatment dated prior to June 2001 and since June 2012 are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Additionally, the March 2005 VA examiner noted that the Veteran was hospitalized at the University Drive VAMC from June 18, 2001 through June 22, 2001, with diagnoses of substance abuse, mood disorder, alcohol dependence, opioid dependence, benzodiazepine abuse, and PTSD by history.  While treatment records from this facility, dated on June 18 and 19, 2001 are of record, complete records from this hospitalization have not been associated with the claims file.  Such records should be requested on remand.  

Further, while VA treatment records dated from June 2001 to June 2012 have been obtained, it appears that these records may be incomplete.  In this regard, a May 2011 insomnia consultation from the Aspinwall campus reflects that, according to the Veteran's records, his recent medical history was significant for several conditions, including BPH, as indicated in a primary care note dated February 16, 2011.  Such primary care treatment note is not included in the VA treatment records currently of record.  Similarly, this May 2011 consultation also refers the reader to the Veteran's psychiatric history as recorded in evaluations dated on December 1, 2004 and September 19, 2007, and a psychological testing report dated October 8, 2004.  These records are also not currently of record.  

Moreover, the record reflects that the Veteran was hospitalized at the University Drive VAMC in August 2006, when he underwent an open simple suprapubic prostatectomy for benign prostatic hypertrophy, urinary retention, and lower urinary tract symptoms.  An August 10, 2006 note from this facility reflects that the Veteran was to be transferred to Aspinwall; however, no records of treatment from this facility dated in August 2006 are currently of record.  Accordingly, any pertinent records from this VA facility, dated in August 2006, should be obtained on remand.    

During the July 2012 hearing, the Veteran indicated that an Agent Orange examiner had suggested to him that his reproductive system was badly affected by defoliating agents to which he was exposed in Vietnam.  When asked whether the physician wrote this in his report, the Veteran responded, "Not the exact words but pretty much that's pretty much what he said."  Despite this testimony, VA treatment records currently of record do not include any Agent Orange examination.  Any such examination should be obtained on remand.  

Additionally, a September 2010 VA psychiatry note reflects that the Veteran was attending group therapy at the Greentree Vet Center.  No treatment records from this facility are currently of record.  Accordingly, they should be requested on remand.  

VA also has a duty to obtain relevant records of treatment reported by private physicians.  Massey v. Brown, 7 Vet. App. 204 (1994).  

In a July 2003 VA Form 21-527, Income-Net Worth and Employment Statement, the Veteran reported that he had been hospitalized at Allegheny General Hospital for a breakdown for one week in October 2002.  In an unsigned September 2003 VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)), the Veteran reported two stays at Allegheny General Hospital in 2002 and 2003 for insomnia and social phobia.  In a January 2005 letter, Dr. P.V.N. of Allegheny General Hospital reported that he had treated the Veteran on and off since 1996, when he had been referred by his therapist for medication evaluation and management.  During the January 2011 VA examination, the Veteran reported that he sought outpatient psychiatric treatment through Allegheny General Hospital in the 1990s.  Other than the January 2005 letter from Dr. P.V.N., no records regarding psychiatric treatment at Allegheny General Hospital have been associated with the claims file.  On remand, these records should be requested.   

In the September 2003 VA Form 21-4142, the Veteran also reported treatment at Monongehlia Valley Hospital for paranoid ideation through the 1990s.  He added that he was treated at Washington Hospital for anxiety in 1979 and on other dates.  
A November 2003 VA treatment record reflects that the Veteran was hospitalized at Monongehlia Valley Hospital for two weeks in 1979 for a "nervous breakdown."  He was, reportedly, hospitalized at that facility on two more occasions and was also hospitalized at Washington Hospital, St. Francis Hospital, and Allegheny General Hospital.  On remand, outstanding pertinent treatment records from these facilities should be requested.  

In her November 2010 letter, the Veteran's counselor, J.P., reported that she had been providing counseling services for the Veteran for symptoms of PTSD related to Vietnam combat experiences and reoccurring major depressive episodes since 1999, and continued to see him for weekly counseling sessions.  However, other than the November 2010 letter, treatment records from this counselor have not been obtained.  On remand, these records should also be requested.  

A November 1999 letter from Dr. T.B. of Triangle Urological Group reflects that the Veteran had last been seen in his office in 1993 for follow-up of testis cancer.  He noted that the Veteran had been experiencing urinary retention.  Dr. T.B. noted that the Veteran had been seeing Dr. M. at Mercy, but felt he was not getting anywhere.  Treatment records from Dr. M. have not been associated with the claims file, and should be requested on remand.  

Additionally, a May 1989 record from South Side Hospital, reflecting that the Veteran was being admitted for a left orchiectomy, indicates that the Veteran was first seen in that facility in February 1989 when he came for evaluation for impotence and stating that his testicles were shrinking.  The earliest treatment records from this facility are dated in May 1989.  As this record indicates that the Veteran received treatment prior to this date, these earlier records should be requested on remand.  

As stated above, the Veteran underwent an open simple suprapubic prostatectomy for benign prostatic hypertrophy, urinary retention, and lower urinary tract symptoms at the University Drive VAMC in August 2006.  The discharge summary from this hospitalization indicates that the Veteran had longstanding obstructive symptoms which had been relieved with a transurethral resection of prostate (TURP) done at an outside hospital two years earlier.  Records of a TURP performed in 2004 are note currently associated with the claims file.  An attempt to obtain such records should be made on remand.  

Also in his July 2003 VA Form 21-527, the Veteran reported that he was in receipt of supplemental security income (SSI).  A July 2008 Social Security Inquiry in the Veteran's Virtual VA e-folder reflects that he was in receipt of benefits from the Social Security Administration (SSA) with a date of initial entitlement in August 2007 and a disability onset date in January 1995.  In his October 2010 claim for service connection, the Veteran asserted that he was unable to work due to cancer and PTSD.  While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims.  See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal.  See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992).  As the Veteran's SSA records have not previously been associated with the claims file and may be pertinent to the claims remaining on appeal these records should be requested. 

Finally, the Board further finds that additional notification action, pursuant to the VCAA, is warranted.  While a December 2010 VCAA letter advised the Veteran of the information and evidence necessary to reopen his claim for service connection for PTSD, and substantiate the underlying claim for service connection, on the merits, in light of the of the recharacterization of this claim, he should be furnished VCAA notice regarding the expanded claim.

Accordingly, these claims are REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him of the type of information and evidence necessary to substantiate his claim of entitlement to service connection for a psychiatric disorder, including PTSD and/or depressive disorder.  

2.  Also request that he provide the names and addresses of any and all mental health care providers who have provided evaluation treatment for a psychiatric disorder, including PTSD and/or depressive disorder, hearing loss, testicular cancer, and/or BPH.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file.


A specific request should be made for all outstanding pertinent treatment records from the VA Pittsburgh Healthcare System, including the Highland Drive, University Drive, and Aspinwall campuses, in particular:  (1) records dated prior to June 2001 and since June 2012; (2) complete records from the Veteran's hospitalization at the University Drive VAMC, dated from June 18, 2001 through June 22, 2001; (3) the record of primary care treatment dated February 16, 2011; (4) psychiatric treatment records dated October 8, 2004, December 1, 2004, and September 19, 2007; (4) treatment records from the Aspinwall VAMC dated in August 2006; and (5) the report of an Agent Orange examination as referenced during the July 2012 hearing.  

Specific requests should also be made for (1) treatment records from the Greentree Vet Center; (2) treatment records from Allegheny General Hospital, dated since the 1990s, to include records regarding an October 2002 hospitalization; (3) treatment records from Monongehlia Valley Hospital, dated in the 1990s; (4) treatment records from Washington Hospital, dated since 1979; (5) treatment records from St. Francis Hospital; (6) treatment records from the Veteran's counselor, J.P., dated since 1999; (7) treatment records from Dr. M., as referenced in Dr. T.B.'s November 1999 letter; (8) treatment records from South Side Hospital, dated prior to May 1989; and (9) records regarding a TURP performed in 2004.  


3.  As well, obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits pertinent to the claims remaining on appeal, as well as copies of all medical records underlying those determinations.  

4.  After all available records have been associated with the claims file, forward the claims file to the examiner that performed the January 2011 VA PTSD examination, if still available, for a supplemental medical opinion.  

In particular, this examiner should identify all of the Veteran's current psychiatric disorders, to include PTSD and/or depressive disorder.  For each identified disorder, the examiner should provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the disorder is a result or consequence of the Veteran's military service.  A complete rationale for all opinions expressed should be set forth in the examiner's report.

In determining whether the criteria for a diagnosis of PTSD in accordance with DSM-IV have been met the examiner should consider and address the November 2010 letter from the Veteran's private counselor and the August 2012 letter from his VA psychiatrist (discussed above).  

If PTSD is diagnosed, the specific service-related stressor or stressors supporting that diagnosis should be identified (whether verified or not).  The examiner is asked to render an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that PTSD is related to the Veteran's fear of hostile military or terrorist activity.

The examiner should further provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that any current alcohol or substance abuse disorder was caused or aggravated by another psychiatric disorder.  

If, for whatever reason, it is not possible to have this same examiner provide this additional comment, then have someone else do it that is qualified to make these necessary determinations.  In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file.

If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination.  All indicated tests and studies should be accomplished.  All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

5.  After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination, by a state-licensed audiologist, to evaluate the service-connected hearing loss.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

The examiner should perform all indicated tests and studies.  At a minimum, the examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale.  The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities.

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

6.  Conduct any other appropriate examination and development deemed necessary.  Then readjudicate these claims in light of this and all other additional evidence.  If any claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs