Citation Nr: 1312677 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-18 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), dysthymic disorder, adjustment disorder, impulse control disorder, depression, anxiety disorder, mood disorder, and psychotic disorder. 2. Entitlement to a compensable evaluation prior to November 30, 2010 for bilateral hearing loss, and in excess of 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Karl Truman, Attorney Representative ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1976 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for PTSD, and a May 2008 rating decision of the VARO in St. Louis, Missouri, which denied an increased rating of the service-connected bilateral hearing loss. Jurisdiction over this claim is currently with the RO in Indianapolis, Indiana. In a June 2012 rating decision, the RO increased the disability rating for bilateral hearing loss to 10 percent disabling, effective November 30, 2010. The Veteran was advised of the determination but did not express agreement with the rating assigned or withdraw the appeal as to an increased rating for bilateral hearing loss. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the 10 percent disability rating for bilateral hearing loss is not the maximum benefit available for the service-connected bilateral hearing loss, this appeal continues. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. However, the Veteran has not reported or contended that he is unable to work specifically due to his hearing loss and the November 2010 VA examiner found that his bilateral hearing loss caused difficulty hearing when describing the impact of his service connected disability on his occupational functioning. However, during a December 2012 VA psychiatric examination, the Veteran reported that he last worked in 2008 and that he applied for Social Security disability benefits from the Social Security Administration (SSA) for "psychiatric reasons." Indeed, a review of the Veteran's SSA records (associated in the claims file in CD format) reveals that SSA benefits were awarded due to his psychiatric disabilities. Thus, the record demonstrates that the Veteran has not claimed to be unemployable due to his bilateral hearing loss and is not employed for reasons other than his service-connected bilateral hearing loss. Therefore, a TDIU claim is not raised by the record in this case. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. Prior to November 30, 2010, the Veteran's bilateral hearing loss was manifested by no more than level II hearing in the right ear and level I hearing in the left ear. 2. From November 30, 2010, forward, the Veteran's bilateral hearing loss is manifested by no more than level II hearing in the right ear and level II hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to November 30, 2010, the criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (2012). 2. From November 30, 2010, forward, the criteria for an evaluation in excess of 10 percent disabling for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 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). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A January 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Substantially compliant notice was also sent in July 2008, and the claim was last readjudicated in a January 2013 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA and private treatment reports and SSA records, have been secured. The RO arranged for VA audiometric examinations in February 2008 and November 2010. These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria for Bilateral Hearing Loss Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, which is used to evaluate the Veteran's bilateral hearing loss disability, provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state licensed audiologist including a controlled speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), it states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular evaluation under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information. Martinak, 21 Vet. App. at 455. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, to include his records on Virtual VA, 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Hearing Loss Rating Analysis The Veteran asserts that higher disability evaluations are warranted for his service-connected bilateral hearing loss. In his June 2008 notice of disagreement, he reported that his hearing loss results in having to wear hearing aids and that his hearing loss has progressively become worse. Prior to November 30, 2010, the Board finds that the weight of the competent and probative lay and medical evidence does not demonstrate that compensable evaluation is warranted. The Veteran underwent a VA audiology evaluation in February 2008. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 55 65 70 56.25 LEFT 40 40 65 75 55 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 in the left ear. The pertinent diagnosis was mild to severe bilateral, sensorineural hearing loss. It was also noted that the situation of greatest difficulty for the Veteran was that he believed his hearing had worsened and yet he was service-connected without a compensable rating. Based upon the results of the February 2008 VA audiology examination, a Roman numeral II is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral I is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable schedular rating. Thus, the audiometric evidence of record does not support a finding of a compensable evaluation prior to November 30, 2010. The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply during this appeal period as the audiometric results of the VA audiometric evaluation did not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. While the Veteran has generally reported that he noticed a worsening in his hearing, the percentage bilaterally of speech recognition reflects high speech discrimination ability. Neither the Veteran nor his representative has set forth any allegation that the hearing examination is deficient in evaluating his bilateral hearing loss. The Court in Martinak additionally noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Martinak at 455-456. Based on a full review of the record during this period on appeal, including the February 2008 VA audiology examination, the Board finds that the weight of the lay and medical evidence does not demonstrate that a compensable evaluation is not warranted for the Veteran's hearing loss prior to November 30, 2010. From November 30, 2010, forward, the Board finds that the weight of the competent and probative lay and medical evidence does not demonstrate that an evaluation in excess of 10 percent disabling is not warranted. The Veteran was afforded a VA audiology evaluation in November 2010. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 40 60 75 80 63.75 LEFT 55 55 70 85 66.25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 in the left ear. The pertinent diagnosis was mild to severe bilateral, sensorineural hearing loss. The Veteran reported hearing difficulty which effected occupational functions significantly; however, there were no functional effects on the Veteran's usual daily activities due to his hearing loss. Based upon the results of the November 2010 VA audiology examination, a Roman numeral II is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral II is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable schedular rating. Thus, the audiometric evidence of record does not support a finding of an evaluation in excess of 10 percent disabling for bilateral hearing loss from November 30, 2010, forward. In fact, as stated, these audiometric findings would also not support a compensable evaluation during this period on appeal. It is clear that the RO, in awarding the Veteran a 10 percent evaluation from November 30, 2010, forward, erred when applying the November 2010 audiometric results to Table VI. The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply during this appeal period as the audiometric results of the VA audiometric evaluation did not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. From November 30, 2010, forward, the Veteran reported an overall worsening of his hearing. The November 2010 VA examiner indicted that there were significant impacts on occupational function due to the hearing difficulty but did not provide any rationale for that finding or indicate that the Veteran reported any specific effects of his hearing loss disability on employment. The Board notes that at the time of a December 2012 VA psychiatric examination, the Veteran's employment history was reviewed and the Veteran reported that he had applied for Social Security disability benefits for his psychiatric condition and that his employer terminated him because of that. He did not indicate during that examination or in any other statement that his hearing loss disability impacted his employment. At the time of the November 2010 VA examination, the Veteran also reported that the hearing difficulty did not affect activities of daily living. See Martinak at 447. Based on a full review of the record during this period on appeal, including the November 2010 VA audiology examination, the Board finds that the weight of the competent and probative lay and medical evidence does not demonstrate that an increased rating in excess of 10 percent disabling is not warranted for the Veteran's hearing loss from November 30, 2010, forward. The Board acknowledges that the Veteran is competent to describe the effects of the Veteran's hearing loss on his occupational functioning and that the November 2010 examination report indicated significant effects on occupation due to hearing difficulty; however, the Board finds that the weight of the lay and medical evidence of record does not reveal significant effects on occupation due to hearing difficulty. In this case, the Veteran also did not report any effects of his hearing loss on his daily functioning. These descriptions of the Veteran's service-connected hearing loss must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. VA examination reports of record include thorough hearing examinations and testing results were consistent over the entire appeal period. Despite the Veteran's general contention that his hearing loss had worsened, the Board emphasizes that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Here, the application of the rating schedule to the audiometric findings does not establish entitlement to a compensable disability evaluation prior to November 30, 2010 and in excess of 10 percent disabling thereafter. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for a compensable disability evaluation prior to November 30, 2010 for bilateral hearing loss, and in excess of 10 percent disabling thereafter, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted for either period on appeal. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the symptomatology and impairment caused by the Veteran's hearing loss disability, throughout both appeal periods, is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provides for disability ratings based on audiometric evaluations, to include speech discrimination testing. In this case, the Veteran's hearing loss symptoms are contemplated by the schedular rating criteria. The Board recognizes and has considered the Veteran's reports of hearing impairment, which is associated with the service-connected bilateral hearing loss. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes an inability to understand certain words in conversation. As discussed above, the evidence regarding functional impairment has been considered. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss disability. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A compensable evaluation prior to November 30, 2010 for bilateral hearing loss, and in excess of 10 percent disabling thereafter, is denied. REMAND At the outset, the Board must note that the Veteran's claim was originally identified by the RO as whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for PTSD. As set forth on the title page of this decision, the issue has been expanded to include service connection for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD include claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Generally, absent the filing of a notice of disagreement (NOD) within one year of the date of mailing of the notification of the initial review and determination of the Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). However, provisions of 38 C.F.R. § 3.156 (2012) direct, in pertinent part, that: a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The provisions of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In this case, in February 2006, the RO denied service connection for PTSD as there was no current diagnosis of PTSD. The Veteran was informed in writing of the adverse decision and his appellate rights in February 2006. He did not submit an NOD with the decision. However, the Board finds that VA treatment records dated within one year of the notice of the February 2006 rating decision were in VA's possession and constitute new and material evidence as to the issue of service connection for an acquired psychiatric disability. Specifically, a December 2006 VA treatment report indicated that the Veteran complained of nightmares and traumatic incidents related to service. The assessment, at that time, was rule out PTSD. As such, new and material evidence pertaining to the issue of service connection for an acquired psychiatric disability was received by the RO within one year of written notice to the Veteran of the February 2006 rating decision. Therefore, the decision is not final and remains pending. 38 C.F.R. § 3.156(b) (2012). A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for an acquired psychiatric disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In June 2010, the Veteran's treating psychiatrist submitted a letter and indicated that he served as the Veteran's VA psychiatrist for an extended period of time, including conducting interviews and treatment of the Veteran on fifteen different occasions. The VA psychiatrist stated that the Veteran meets the full criteria for a longstanding diagnosis of PTSD. He further indicated that the Veteran has been previously treated for PTSD, is currently being treated for PTSD, and will continue to require treatment for PTSD in the future. While the Veteran's extensive VA treatment reports indicate that this VA psychiatrist did render a diagnosis of PTSD, the record is incomplete for VA compensation purposes. Under 38 C.F.R. § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition in accordance with the section for diagnosing mental disorders. 38 C.F.R. § 4.125(a) indicates that the diagnosis of a mental disorder must conform to the DSM-IV or must be supported by the findings on the examination report. Otherwise, the report shall be returned to the examiner to substantiate the diagnosis. Here, it is unclear whether the Veteran's treating VA psychiatrist rendered a diagnosis of PTSD that conforms to the DSM-IV and he did not provide other findings to substantiate the diagnosis. The VA psychiatrist did not link the Veteran's alleged stressor of witnessing a motor vehicle accident and death of two fellow service members in 1977 to his current symptoms. While the Veteran first alleged, in his May 2005 claim, that his stressor was "the type of combat training" received in active service, the record reflects that the Veteran later clarified that his stressor was witnessing a car accident and the death of two fellow service members in 1977. Upon remand, the VA psychiatrist must clarify his June 2010 report and provide an addendum medical opinion. The Veteran was afforded a VA psychiatric examination in December 2012. In this regard, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr at 303. Here, the findings and medical opinion provided by the December 2012 VA examiner are inadequate. After an interview and physical examination of the Veteran, the examiner diagnosed the Veteran with personality disorder, mood disorder, psychotic disorder, alcohol dependence, and cannabis abuse. The examiner opined that these psychiatric disabilities were not caused by or a result of his reported military stressor of witnessing a motor vehicle accident and death of two fellow service members in 1977. The examiner concluded that the Veteran did not met the criteria for a diagnosis of PTSD. While the examiner indicated that a rationale for each diagnosis is provided in the Comments box under the diagnosis, a review of such comments instead reveals the reasoning for each separate diagnosis and not an explanation of why the psychiatric disabilities are not related to service, to include the in-service events he has described. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions); see also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (The Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of a Veteran's disorder.). In addition, the Veteran has been variously diagnosed with other psychiatric disabilities, to include dysthymic disorder, adjustment disorder, impulse control disorder, depression, and anxiety disorder. The December 2012 VA examiner did not opine as to the etiology of these other, current psychiatric disabilities and the issue must also be remanded for this reason. Upon remand, the December 2012 VA examiner should provide an addendum medical opinion that fully discusses each diagnosed psychiatric disability with a detailed rationale for any opinions rendered. Accordingly, the issue of service connection for an acquired psychiatric disability is REMANDED for the following action: 1. Contact the VA psychiatrist who provided the June 2010 letter and ask him to clarify whether the Veteran meets the six DSM-IV criteria for PTSD (Criteria A-F), and specify the basis for diagnosing the Veteran with PTSD (if that continues to be the conclusion), or otherwise substantiate the PTSD diagnosis. If the VA psychiatrist continues to conclude that the Veteran has a diagnosis of PTSD, request him to offer an opinion as to whether any claimed stressor, to include witnessing the death of two fellow servicemen due to a motor vehicle accident in 1977, is adequate to support a diagnosis of PTSD and whether the Veteran's current symptoms are linked to the claimed stressor. A rationale should be given for all opinions and conclusions rendered. 2. Next, if possible, request that the medical professional who conducted the December 2012 VA psychiatric examination review the claims file and provide an addendum medical opinion. The claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the December 2012 examiner is not available, obtain the requested opinion from another appropriate psychologist or psychiatrist. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to causation, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder should be made available to and reviewed by the examiner. The examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) the Veteran's diagnosed psychiatric disabilities, other than, to include dysthymic disorder, adjustment disorder, impulse control disorder, depression, anxiety disorder, mood disorder, and psychotic disorder, had their onset during service or are otherwise related to service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 3. After completion of the above and any additional development deemed necessary, the claim for service connection for an acquired psychiatric disability should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs