Citation Nr: 1304640 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-25 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether a July 1969 administrative decision which denied entitlement to service connection for a nervous condition contains clear and unmistakable error (CUE). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1965 to March 1969. These matters come before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied a claim of CUE with respect to a July 1969 administrative decision as well as claims for service connection for bilateral hearing loss and tinnitus. In addition, the Veteran's request to reopen a claim for service connection for an acquired psychiatric disorder was granted and the reopened claim was denied on its merits. A review of the Virtual VA paperless claims processing system does not reveal documents pertinent to the claims on appeal. The United States Court of Appeals for Veterans Claims (Court) has indicated that a claim for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F. 3d. 1330 (Fed. Cir. 2008). In reconciling these holdings, the Court held that when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, 'the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337). Here, the Veteran was denied service connection for a nervous condition, then diagnosed as a conversion reaction with anxiety, in a July 1969 administrative decision. It does not appear that the RO specifically considered whether the Veteran may have been entitled to service connection for depressive disorder or general anxiety, as no such diagnoses were contained in the record at that time. Rather, service connection was denied as a matter of law under 38 C.F.R. § 3.303(c) and § 3.655 (2012) in the July 1969 administrative decision. Thus, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depressive disorder is a new claim rather than part of the previously denied claim for service connection for a nervous condition. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Veteran testified before the undersigned Veterans Law Judge at a March 2012 hearing at the RO (Travel Board). A hearing transcript has been associated with the claims file. In April 2012, and subsequent the issuance of the April 2012 statement of the case, the Veteran submitted additional evidence in support of his claims. This evidence was accompanied by a waiver of RO consideration. The issues of entitlement to service connection for an acquired psychiatric disorder, bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT During the March 2012 hearing, and prior to the promulgation of a decision, the Veteran requested withdrawal of the issue of whether a July 1969 administrative decision contained CUE. CONCLUSION OF LAW The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of whether a July 1969 administrative decision contained CUE have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). During the March 2012 hearing, the Veteran withdrew his appeal as to the issue of whether a July 1969 administrative decision contained CUE. As the Veteran has withdrawn his appeal as to that issue, there remain no allegations of errors of fact or law for consideration. Accordingly, the Board does not have jurisdiction to review the appeal on the issue of whether a July 1969 administrative decision contained CUE and that claim is dismissed without prejudice. As there is no error of law or fact over which the Board has jurisdiction, no discussion of VA'S duty to notify or assist the Veteran is required. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). ORDER The appeal whether a July 1969 administrative decision, which denied entitlement to service connection for a nervous condition, contained CUE is dismissed. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id.; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran contends that his hearing loss and tinnitus are the result of his in-service noise exposure but also testified during his March 2012 hearing that he experienced mild ringing in his ears prior to service. A June 2008 VA audiology examiner opined that the Veteran's hearing impairment and tinnitus were not caused by or a result of such in-service noise exposure and provided a rationale in support of this opinion as to the hearing loss; no such rationale was provided as to the Veteran's tinnitus. The examiner noted that the Veteran had a history of numerous ear infections as child and found that his tympanic membrane scarring was consistent with a childhood history of ear infections but did not indicate whether this history had any impact on his claimed bilateral hearing loss. In addition, this examiner did not address the Veteran's contentions that he experienced ringing in his ears prior to service. It light of these deficiencies, it is unlikely that this opinion would survive judicial scrutiny. The Board notes that congenital or developmental defects, such as personality disorders and mental deficiency, are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded for any such defects. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect, such as a personality disorder or mental deficiency, during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The Veteran has claimed that he had an acquired psychiatric disorder as a result of service and that he did not have any such disorder prior to service. He was afforded a VA psychiatric examination in June 2008. The examiner found that the Veteran had a personality disorder which pre-existed his service entrance and that this personality disorder made him vulnerable to episodes of depression and anxiety. The examiner also diagnosed the Veteran with depressive disorder secondary to a personality disorder. However, this opinion was not stated in the degree of certainty required to address the presumption of soundness under 38 U.S.C.A. § 1111; and, in light of this deficiency, the June 2008 VA opinion would be unlikely to survive judicial scrutiny. Clarification of this opinion is therefore required on remand. During the March 2012 hearing, the Veteran testified that he had undergone psychiatric treatment at the VA Medical Center (VAMC) in Roseburg in 1969. Such records are not contained in the claims file and it did does not appear that they have been requested by the RO. In addition, the Veteran testified during his March 2012 hearing that he last received treatment at VA "two or three years ago." VA treatment records dated through August 2009 are located in the claims file and it is not clear whether these records encompass the most recent VA treatment. As these records have been adequately identified and are relevant to the instant claims, they should be obtained on remand. 38 U.S.C.A. § 5103(a). A February 1969 service discharge examination indicated that the Veteran had been hospitalized at David Grant Hospital due to his psychiatric symptoms, which were diagnosed as a conversion reaction. These records are not located in the claims file and it does not appear that a request for these clinical records has been made. The Board also notes that the David Grant Hospital at Travis Air Force Base (AFB) has maintained a clinical library since the mid-1950s and that such records may not be associated with a veteran's Official Military Personnel File (OMPF). See http://www.archives.gov/st-louis/military-personnel/clinical-record-libraries.html. As such, a request for clinical records from Travis AFB should be conducted on remand. In addition, an April 2010 response from the Social Security Administration (SSA) indicated that the Veteran had been in receipt of disability benefits since January 2005. The basis of such an award is not clear from the current record. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain the Veteran's treatment records from the Roseburg VA Medical Center from 1969 as identified by the Veteran during his March 2012 hearing. In addition, the Veteran's updated VA treatment records should be obtained; the most recent records are dated through August 2009. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. The RO/AMC should obtain the Veteran's in-service clinical records from the David Grant Hospital at Travis Air Force Base for the referenced psychiatric treatment. The clinical library at the David Grant Hospital at Travis Air Force Base should be specifically contacted to obtain these records. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 3. The RO/AMC should contact the Social Security Administration (SSA) and request the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records which are in SSA's possession. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 4. Following the completion of the above development, the RO/AMC should obtain an addendum to the June 2008 VA examination, if possible, or afford the Veteran a VA examination to determine the nature and etiology of his claimed tinnitus and bilateral hearing loss found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: a) Based on a review of the entire record, did the Veteran's current tinnitus and/or bilateral hearing loss clearly and unmistakably (absolutely certain) preexist his entrance into service in September 1965? The examiner should specifically comment on the Veteran's March 2012 hearing testimony that he experienced mild ringing in his ears prior to service and his June 2008 reports of that he experienced numerous ear infections as a child. (b) If any such injury, defect, or disorder, including the claimed tinnitus and/or bilateral hearing loss, preexisted the Veteran's period of active duty service, was there a worsening of such injury, defect, or disorder during service? If so, did such a worsening (i.e., increase in severity) represent the natural progress of the injury, defect, or disorder; or, was such a worsening beyond the natural progress of the injury, defect, or disorder (representing a permanent worsening of the underlying condition). The examiner should specifically comment on the Veteran's March 2012 hearing testimony that the ringing in his ears worsened (i.e. grew louder) during service. (c) If the examiner determines that the claimed tinnitus and/or hearing loss did not preexist the Veteran's service, is it at least as likely as not (50 percent or greater probability) that either disability had its onset during the Veteran's active duty service from September 1965 to March 1969; or, was such disorder caused by any incident or event that occurred during his period of service, including his claimed noise exposure? In answering each of the questions posed above, a discussion of the facts and medical principles involved will be of considerable assistance to the Board. The examiner is asked to explain the medical basis or bases for his or her opinion(s), based on the evidence of record, his or her clinical experience, medical expertise, and sound medical principles. 5. Following the completion of the development listed in items numbered one through three, the RO/AMC should obtain an addendum to the June 2008 VA examination, if possible, or afford the Veteran a VA examination to determine the nature and etiology of his acquired psychiatric disorder found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: a) Based on a review of the entire record, did the Veteran's current acquired psychiatric disorder, including a personality disorder not otherwise specified, clearly and unmistakably (absolutely certain) preexist his entrance into service in September 1965? (b) If any such injury, defect, or disorder, including the claimed acquired psychiatric disorder, preexisted the Veteran's period of active duty service, was there a worsening of such injury, defect, or disorder during service? If so, did such a worsening (i.e., increase in severity) represent the natural progress of the injury, defect, or disorder; or, was such a worsening beyond the natural progress of the injury, defect, or disorder (representing a permanent worsening of the underlying condition). (c) If the examiner determines that the claimed acquired psychiatric disability, other than a personality disorder, did not preexist the Veteran's service, is it at least as likely as not (50 percent or greater probability) that his disability had its onset during the Veteran's active duty service from September 1965 to March 1969; or, was such disorder caused by any incident or event that occurred during his period of service? (d) With regard to the Veteran's diagnosed personality disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran's depressive disorder and anxiety represent additional disability superimposed on his congenital personality disorder (i.e., was his personality disorder aggravated, or permanently worsened by service such as to cause the currently diagnosed depressive disorder and anxiety). If so, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In answering each of the questions posed above, a discussion of the facts and medical principles involved will be of considerable assistance to the Board. The examiner is asked to explain the medical basis or bases for his or her opinion(s), based on the evidence of record, his or her clinical experience, medical expertise, and sound medical principles. 6. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs