Citation Nr: 1315705 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 08-33 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for depression to include as secondary to service connected tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the claims for entitlement to service connection for PTSD and depression. The Board notes that the Veteran's initial depression claim was for service connection for depression. However, in January 2012, the Veteran filed a claim for depression secondary to his service connected tinnitus. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In compliance with the Court's holding in Clemons, the Board has recharacterized the claim as entitlement to service connection for depression to include as secondary to service connected tinnitus, as styled on the title page. In October 2010 and August 2012, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the October 2011 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Veteran testified before a Veterans Law Judge (VLJ) at an August 2010 Travel Board hearing at the RO. The hearing transcript is of record. However, the VLJ who conducted this hearing is no longer employed by the Board. Pursuant to 38 C.F.R. § 20.707 (2012), the VLJ who conducts a hearing shall participate in making the final determination of the claim. In March 2013, the Veteran testified before the undersigned VLJ during a second Travel Board hearing at the RO. Thus, the Board may proceed with the case. The issue of entitlement to service connection for depression to include as secondary to service connected tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy. 2. The Veteran's PTSD is the result of an in-service stressor for which there is credible supporting evidence. CONCLUSION OF LAW PTSD was incurred due to active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remands The Board observes that this case was previously remanded in October 2010 and August 2012. The purpose of the October 2010 remand was to obtain updated medical records, if any, and a VA mental health examination. An appropriate VA examination was conducted in November 2010. The Veteran did not indicate that any medical records were outstanding. In August 2012, the case was remanded by the Board in order to obtain a new Travel Board hearing as the VLJ who conducted the prior hearing retired. See 38 C.F.R. § 20.707 (2012). The record documents that a new Travel Board hearing was conducted by the undersigned VLJ in March 2013. It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Service Connection- PTSD The Veteran contends that service connection is warranted for PTSD as it was incurred due to a traumatic event that occurred during active duty service. The Veteran reported that in April 1968 while returning to his base in Iceland from a three-day leave, he was flying in a C-121 plane when he saw one of the plane's engines begin to leak oil, drop to 45 degrees and then fall off the plane. See Veteran's Statements, October 2005 & January 2006. The plane nose-dived and the Veteran thought he was going to die; however, the pilot was able to steady the plane approximately 3,000 feet from the icy water and they made an emergency landing in Thule, Greenland. Id. As a result of this incident, the Veteran has not been on a plane since leaving service. Id. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). 38 C.F.R. § 3.304(f). The medical evidence of record establishes that the Veteran has been diagnosed with PTSD by VA and private health care providers. See VA Mental Health Examination, November 2010; see also Medical Opinions of Dr. D.P. and Dr. D.A.N. The medical evidence also establishes a link between the Veteran's symptoms and his reported in-service stressor. Id. The Veteran's diagnosis of PTSD by the November 2010 VA examiner was based on his report of trauma related to his in-service April 1968 near-death experience aboard the C-121 plane. Similarly, the Veteran was diagnosed with PTSD based on the same stressor in a July 2010 medical opinion by Dr. P.D. and a December 2011 medical opinion by Dr. D.A.N. Therefore, the issue in this case is whether the evidence supports a finding that the Veteran's claimed in-service stressor occurred. The evidence does not establish, and the Veteran has not alleged, that he participated in combat with the enemy. If the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Veteran claims that his complaints and treatment of depression in-service were the result of his PTSD stressor. See Veteran's Statement, April 2006. There is evidence in the record that shows the Veteran suffered from depression while in-service. Service treatment records (STRs) document that in October 1969, the Veteran received a psychiatric evaluation with a diagnostic impression of situational reaction manifested by mild tension, depression and feelings of boredom and monotony in confinement and routine military adaptation stress that improved with environmental treatment. However, there is no evidence in the record, other than the Veteran's lay statements, linking his in-service diagnosis of depression with his PTSD stressor. The RO attempted to verify the Veteran's account of an emergency C-121 landing in April 1968 in Thule, Greenland. However, the Department of the Navy responded that no records of such an incident could be found as only documents pertaining to incidents involving a fatality or irreparable damage to an aircraft were permanently retained. See Department of the Navy, Response, April 2010. The Veteran submitted a June 2007 buddy statement confirming his stressor. The statement was from a service member who served with the Veteran in Iceland and was aboard the C-121 plane with the Veteran when the engine fell off, the plane started into a dive and an emergency landing in Greenland was necessary. The service member noted that the incident ". . . was a very traumatic event of unforgettable proportions that still lingers mentally." The Board finds that the June 2007 buddy statement constitutes corroborative evidence which substantiates the Veteran's consistently reported stressor. As all the elements necessary for service connection for PTSD are present, the claim is granted. VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) ); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. ORDER Entitlement to service connection for PTSD is granted. REMAND The Board regrets further delay in this case but finds that additional development is necessary before a final decision can be rendered on the issue of entitlement to service connection for depression to include as secondary to service connected tinnitus. In July 2005, the Veteran filed his claim for entitlement to service connection for depression. An RO rating decision issued in November 2006 denied service connection for depression on a direct basis. In January 2009, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss and tinnitus. The RO granted service connection for tinnitus and hearing loss in an April 2009 rating decision. In January 2012, the Veteran raised the issue of entitlement to service connection for depression secondary to his service connected tinnitus. "A 'claim' is defined as 'a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.'" 38 C.F.R. § 3.1(p) (2012); Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Separate theories in support of a claim for a particular disability are to be adjudicated under one claim. See Robinson v. Peake, 21 Vet. App. 545, 550-51 (2008); see also Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) ("although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim"); Bingham v. Principi, 18 Vet. App. 470, 474 (2004) (distinguishing between a "claim" and a "theory" by stating that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection") aff'd 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and that a final denial on one theory is a final denial on all theories). Generally, the Board would simply refer this issue to the AOJ for consideration. However, since the Veteran's has raised a new theory of entitlement (secondary service connection) in addition to his original theory (direct service connection) for the same disability of depression, it is necessary to adjudicate both theories under the same claim. See Robinson, 21 Vet. App. at 550-51. Therefore, remand of the issue of entitlement to service connection for depression to include as secondary to service connected tinnitus is appropriate. As a result, the Veteran should identify any VA and non-VA treatment he has received for his depression and tinnitus during the appeal period. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). If any VA facilities are identified, the RO must obtain the Veteran's complete records from the identified facility. If any non-VA providers are identified, the Veteran should be asked to submit the requisite authorization for the release of those records as well as submit the relevant records himself. The record shows that in 1990, the Veteran began receiving disability insurance from the Social Security Administration (SSA) and from a private source. See VA Mental Health Examination, November 2010. The RO attempted to obtain records from SSA, but a November 2008 response from SSA indicated that the Veteran's records had been destroyed and further attempts to locate the records would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c)(2); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). However, the RO has not attempted to obtain the Veteran's private disability insurance records. The RO should request that the Veteran provide the necessary information and authorization to obtain these potentially pertinent records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c)(1). Additionally, the Veteran should be scheduled for a new VA mental health examination. See 38 C.F.R. § 3.159(c)(4). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158(b), 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a VCAA notice letter for the claim of depression secondary to service connected tinnitus. 2. Ask the Veteran to identify all medical care providers who have treated him for depression and tinnitus during the appeal period, including any treatment he may have received from the Puget- Sound VA Medical Center (VAMC) and Dr. D.P. at the University of Washington Medical Center. After securing the necessary release(s), obtain these records. 3. Ask the Veteran do identify any and all private disability insurance he is receiving, along with the address of any provider or agency which has information pertaining to his private disability payment. After securing the necessary release(s), obtain a copies of records pertaining to the Veteran's private disability payments. 4. After completion of the above, the RO should arrange for a new psychiatric examination with a medical professional with appropriate expertise. The claims file and a copy of this remand should be made available to the examiner, who shall acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner should provide a current psychiatric diagnosis. The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. The examiner should then determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently diagnosed psychiatric disorder(s) are related to any incident(s) of the Veteran's active duty service, to include his report of an April 1968 near-death experience in an airplane, his service-connected PTSD and /or are proximately due to or chronically worsened by his service-connected tinnitus or hearing loss. The examiner should consider the Veteran's lay statements that he first began experiencing symptoms of depression in the early 1990s due to disability pain associated with his back and having to give up his job. Additionally, the examiner is directed to the other VA and private medical opinions in the record regarding the etiology of the Veteran's diagnosed psychiatric disorders and requested to provide a discussion of why opposing opinions are not persuasive. The VA examiner is requested to provide a thorough rationale for any opinion provided. 5. Readjudicate the claim on appeal with consideration of all evidence of record. If the benefit sought is not fully granted, provide the Veteran and his representative a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The appellant 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs