Citation Nr: 1315768 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-30 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from May 1973 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for bilateral hearing loss and awarded a noncompensable rating as of November 21, 2008; and denied service connection for PTSD and prostate cancer. In July 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to an initial compensable rating (higher than 0 percent) for his bilateral hearing loss disability. He was last evaluated for compensation and pension purposes for his hearing loss disability in November 2011. The Veteran testified at his July 2012 Board hearing, however, that the severity of his hearing loss disability had worsened since the November 2011 examination. He indicated that he was having problems at work and at home with his wife having to repeat herself several times, even on the phone. He felt that his hearing had gone downhill since the November 2011 examination. Given that the Veteran has asserted that the severity of his bilateral hearing loss disability has worsened since it was last evaluated in 2011, an additional VA examination is warranted to determine the present severity of his bilateral hearing loss disability. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Additionally, the Veteran seeks service connection for PTSD and prostate cancer. With respect to his PTSD, the Veteran has stated that many of his duties in the Navy were classified and since he is not sure if they have since been declassified he does not feel comfortable divulging the details of his stressors. However, he has indicated that his duties as a Special Forces operator in the U.S. Navy brought him into Southeast Asia and that he witnessed people being killed. He has stated that he was with underwater demolition, which he explains today is the same as the Navy SEALS. He noted that he was involved in special warfare at UDT-11 and made several trips to Southeast Asia during the Vietnam War. He seems to be relating his PTSD at least in part to these unspecified, classified duties. The Veteran also indicated that he underwent many jumps in service that were traumatic in nature and that he would wake up screaming from having nightmares about these jumps. He also described one jump where he had some teeth knocked out and indicated that he received treatment for this injury in service. In addition he recalled witnessing a fellow service member severely injure his legs by jumping. The service treatment records show injury to the right knee from parachute jumping, as well as complaints of right ankle pain due to jumping. There is no record of him losing teeth as a result of a jump. Nonetheless, the record corroborates the Veteran's report that he did parachute jumping in service. The Veteran testified at the Board hearing that he still had nightmares from parachute jumping. He also testified that the person who he witnessed severely injure his legs was named, JB. In addition on a stressor statement received in February 2009 the Veteran indicated that a friend lost his life during a flight maneuver, and that his name was PN, but he did not recall the date. The Veteran has been diagnosed with PTSD by a VA doctor in April 2010. The psychologist noted that the Veteran indicated that he felt his military activities might still be classified and was unwilling to provide details of his military service other than indicating that he served as a Navy SEAL and might have been in Southeastern Asian countries other than Vietnam. The Veteran noted that there were several events, which he did not recall, which the psychologist speculated might represent amnestic syndrome. He indicated that several of the soldiers he was serving with were killed. The psychologist determined that the Veteran's current symptoms he was experiencing might support a diagnosis of PTSD. The Veteran described nightmares, disturbed sleep, marked startle response to any unexpected noise, emotional reaction to stimuli associated with war, such as the smell of diesel, sound of helicopters, explosions, or gunfire. He tended to avoid crowds and carefully locked doors at night. The Axis I diagnosis was chronic PTSD. Service connection for PTSD requires that three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125 (a). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the service member served, the service member's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the service member engaged in "combat with the enemy." If the evidence establishes that the service member engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, (and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service), the service member's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d); see also 38 U.S.C.A. § 1154(b); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a service member engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256-58 (Feb. 8, 2000). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for veterans without documentation of having engaged in combat with the enemy. See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843 -39,852). The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the service member had prior to enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. The appellant in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, but not decided by the Board as of July 13, 2010. It is not clear if the amended provisions to 38 C.F.R. § 3.304(f) apply to the Veteran's claim given that he will not specify the combat stressors he experienced during his military service, as he believes his actions might still be classified. Nonetheless, given that the service treatment records corroborate his parachute jumping in service in addition to injuries received as a result of jumping, the Veteran should be given the benefit of the doubt that he experienced fear while jumping. The determination as to whether the Veteran now has PTSD as a result of the parachute jumping in service is a medical matter that must be resolved by a VA psychologist or psychiatrist. Thus, the case must be remanded for this reason. The Veteran's personnel records show that he served with ANGLICO (Air Naval Gunfire Liaison Company) in May 1976. His DD-Form 214 also shows 2 years of foreign and/or sea service. The RO attempted to corroborate the Veteran's Special Operations Forces Incident when he indicated he was assigned to the Underwater Demolition Team 11/ Air Naval Gunfire Liaison Company from May to July 1974. However, the United States Special Operations Command (USSOCOM) and the Navy Special Warfare Command historians were unable to verify the stressor. The National Personnel Records Center (NPRC) also indicated that there was no evidence in the Veteran's file to substantiate service in Vietnam. Nonetheless, additional efforts should be made to determine whether there were any significant combat activities on the USS Tulare during the Veteran's service, or whether there is any record of severe injury to an individual named, JB, or death of an individual named, PN. In April 2009, the RO made a formal finding of lack of information required to corroborate stressors associated with a claim for PTSD. However, this was prior to the Veteran submitting his additional testimony concerning his stressors or the VA treatment records indicating a diagnosis of PTSD based on his stressors. Regarding his prostate cancer, as the record shows a diagnosis of prostate cancer reflected in private treatment records dated from March 2008 to June 2008, the Veteran's claim primarily hinges on whether he had service in Vietnam. Personnel records show that the Veteran served on the USS Tulare between January 1974 to February 1975 but that the ship was not directly involved with Vietnam at that time. The Veteran alleges, however, that the ship still had residual herbicides from when it did have Vietnam service from 1966 to 1972, which he was exposed to. As noted, he also has vaguely mentioned that he had service in Southeast Asia but that the details of this service are classified. Given that the case is being remanded for additional efforts to corroborate the Veteran's claimed PTSD stressors and possible service in Vietnam, the issue of whether the Veteran's exposure to herbicides is shown in the records is inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide a detailed stressor statement. 2. Thereafter, contact appropriate service department in efforts to corroborate the Veteran's reported combat activities while serving aboard the USS Tulare from January 10, 1974 to February 27, 1975, including his reported service in Vietnam. Efforts should include obtaining copies of ships logs and/ or records from the National Archives. In addition make efforts to verify whether there is any record of severe injury to an officer named, JB, from parachute jumping, or death of an individual named, PN, during flight maneuvers. If efforts to obtain the additional service records are negative notify the Veteran and indicate what further steps VA will make concerning his claim. 3. Thereafter, schedule the Veteran for a VA mental health examination with a psychiatrist or psychologist. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current psychiatric disorders found to be present. The examiner also should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, to include fear from parachute jumping, or any other stressor event that is verified by the service department. If the Veteran meets the DSM-IV criteria for PTSD, the examiner must determine whether the Veteran's PTSD can be related to the stressors reported by the Veteran. The examiner must provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military activity during service, and whether his symptoms are related to the claimed stressors. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for an appropriate VA examination of his bilateral hearing loss. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should conduct a thorough audiological evaluation. The examiner must also provide a full description of the functional effects caused by the bilateral hearing loss. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the VA examination reports obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 6. Finally, readjudicate the claims on appeal. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).