Citation Nr: 1315901 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-30 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for degenerative joint disease of the left knee. 3. Entitlement to service connection for right knee strain, to include as due to degenerative joint disease of the left knee. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1969, including in the Republic of Vietnam from December 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied, in pertinent part, the Veteran's claims of service connection for PTSD, bilateral hearing loss, and for tinnitus. The Veteran disagreed with this decision later in January 2008. This matter also is on appeal from an April 2008 rating decision in which the RO denied, in pertinent part, the Veteran's claims for a back disability, for degenerative joint disease of the left knee (characterized as degenerative joint disease of the left knee (claimed as left knee injury)), and for right knee strain, to include as due to degenerative joint disease of the left knee. The Veteran disagreed with this decision in July 2008. An RO hearing was held on all of the Veteran's claims in February 2009. He perfected a timely appeal in August 2009. A Board hearing was held in February 2013 before the undersigned and a copy of the hearing transcript has been included in the Veteran's Virtual VA paperless claims file. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence indicates that the Veteran has been diagnosed as having anxiety disorder and depressive disorder. Thus, the claim has been recharacterized as stated on the title page of this decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred a back disability, degenerative joint disease of the left knee, right knee strain, to include as due to degenerative joint disease of the left knee, PTSD, bilateral hearing loss, and tinnitus during active service. The Board finds that additional development is required before the underlying claims can be adjudicated on the merits. The Board notes initially that the Veteran reported at an August 2011 VA examination for PTSD that he was in receipt of Social Security Administration (SSA) disability benefits for his back. Indeed, an SSA inquiry in 2006 indicated that the Veteran was receiving disability benefits. None of his SSA records currently are associated with the claims file or located in Virtual VA. The Board notes that VA has a duty to obtain relevant SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinkseki, 590 F.3d 1317 (Fed. Cir. 2010). 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. Also, the Veteran testified that after service in 1970 he underwent a physical examination at Reynolds Metal Company (now known as Wise Alloys) and was told his "spine was crooked" and he did not get the job. Efforts to obtain records on any physical examinations of the back the Veteran underwent in connection with his former employer should be undertaken. Similarly, with respect to the Veteran's service connection claims for degenerative joint disease of the left knee and for right knee strain, to include as due to degenerative joint disease of the left knee, the Veteran has contended that he injured both of his knees during active service. He also has contended that his in-service left knee injury caused or contributed to his current right knee disability (which has been diagnosed as right knee strain). A review of the Veteran's most recent VA joints examination in October 2007 shows that he was diagnosed as having current degenerative joint disease of the left knee and right knee strain. The October 2007 VA examiner also diagnosed the Veteran as having hemarthrosis of the left knee during active service in 1968 and a medial collateral ligament (MCL) sprain of the left knee during active service in 1969. The examiner provided the following opinion: "I believe that it is very unlikely that these two sets of conditions have any relationship whatsoever. I do not believe that his MCL sprain or his hemarthrosis caused his current degenerative disease of the left knee." The Board recognizes that it is the examiner's conclusion that there is no causal connection between the in-service disorders and the current disorder; however, the examiner did not provide a supporting rationale for drawing this conclusion. As such, the opinion is inadequate for evaluation purposes. See Nieves-Rodriguez, 22 Vet. App. 295, 304; see also 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."). Also, in addressing the right knee, he opined that it was "extremely unlikely" that the Veteran's right knee strain was related to his "service connected pain in the left knee." This statement must be clarified as the VA examiner previously rendered a finding that the Veteran's left knee problems were not related to active service. The examiner also did not address whether the Veteran's right knee strain was related to active service on a direct basis. Service treatment records show that instability of the right knee was noted on examination in November 1968. Accordingly, the October 2007 VA examination report must be returned to the examiner for a clarification of opinion that addresses the foregoing concerns. With respect to the Veteran's service connection claims for bilateral hearing loss and tinnitus, following the Veteran's most recent VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in April 2012, the VA examiner provided the following rationale for her opinion concerning the contended causal relationship between the Veteran's bilateral hearing loss and active service: Normal hearing sensitivity evidence at entrance and separation in the service with no significant change in thresholds for either ear. The Institute of Medicine Report on noise exposure in the military concluded that based on current knowledge NIHL occurs immediately, ie there is no scientific support for delayed onset NIHL weeks, months, or years after the exposure event. limits at time of separation exam, his current hearing loss is less likely... The Board cannot determine what the VA examiner is trying to say in the last sentence of the rationale for this opinion concerning the contended causal relationship between the Veteran's bilateral hearing loss and active service. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The April 2012 VA examiner also provided the following rationale for her opinion concerning the contended causal relationship between the Veteran's tinnitus and active service: If there is no hearing loss or changes, the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence. Reported onset time of tinnitus is not relevant to time in service. Veteran was exposed to significant noise in occupation which may have contributed to tinnitus. The Board cannot determine what the VA examiner is trying to say in the first sentence of this rationale, especially in light of the clinical findings in the April 2012 VA hearing loss and tinnitus DBQ that bilateral sensorineural hearing loss was present. As noted above, the Board cannot substitute its own independent judgment to resolve medical questions. See Colvin, 1 Vet. App. at 175. Accordingly, the April 2012 VA hearing loss and tinnitus DBQ must be returned for clarification from the VA examiner. With respect to the Veteran's service connection claim for an acquired psychiatric disability to include PTSD, the Veteran's representative raised the contention that the search conducted to verify the Veteran's claim that he was exposed to an enemy rocket and mortar attack on the first night (December 1967) he arrived in Long Binh was deficient because the wrong unit was researched. The claimed stressor event occurred while the Veteran was attached to Company D, 459th Signal Battalion, 41st Signal Battalion rather than 1st Signal BN & Co "C" 37th Signal Battalion, the unit that was researched. The Veteran also testified at a DRO hearing that at his last duty station at an Air Force Base in Da Nang, he was exposed to multiple attacks and bombings. He was attached to 1st Signal Battalion, Company C, 37th Signal Battalion. The Veteran's military occupational specialty was a lineman. During the course of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 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 that 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. See 75 Fed. Reg. 39843 (July 13, 2010), as amended by 75 Fed. Reg. 41092 (July 15, 2010)). The rule has no geographic requirement and is not limited to service in a combat zone or on land. Id. VA treatment records show treating physicians have provided Axis I diagnoses of alcohol dependence, cognitive disorder, depressive disorder, and "likely underlying PTSD." The Veteran underwent a VA examination in August 2011 at which time the examiner found that the Veteran met most but not all criteria for a diagnosis of PTSD. Rather, current overall presentation was consistent with mixed anxiety-depressive disorder, which falls under DSM-IV criteria for anxiety disorder not otherwise specified. The opinion was rendered with acknowledgment that the Veteran's treating physician Dr. M.G. diagnosed "likely underlying PTSD." Significantly, the VA examiner went on to state that the Veteran's "symptoms appear longstanding and are as likely as not related to fear of hostile military action stemming from his time in Vietnam." The Board observes that the claimed stressor of exposure to enemy mortar attacks, which the Veteran reported on at the VA examination, fits within the definition of fear of hostile military or terrorist activity. The application of the amended PTSD regulation, including the relaxed evidentiary standard for establishing the required in-service stressor, however, is dependent upon a diagnosis of PTSD. The VA examiner diagnosed anxiety disorder not otherwise specified but linked it to the Veteran's fear of hostile military or terrorist activity in service. Under these circumstances the Board finds that further attempts to verify the Veteran's stressor relating to exposure to mortar attacks should be made. Also, in regard to the claimed stressor involving the road grader accident at Chu Lai, the Veteran should also be asked to provide the names of those killed and their unit of assignment. If provided, then an attempt to verify the stressor should be made. Lastly, the Veteran testified that he continued to receive mental health treatment from Dr. L.L. at the VA Shoals Area (Florence) Clinic (parent facility, Birmingham VAMC). VA treatment records dated from March 2012 should be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, the Veteran prepared VA Form 21-4142 in favor of ECM Hospital, indicating treatment received for his back and "legs." These records are potentially relevant. The duty to assist requires that VA assist the Veteran in procuring the identified records. 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify the names of those killed and their unit of assignment in regard to the Veteran's claimed stressor involving the road grader accident at Chu Lai. 2. Undertake appropriate development through the JSRRC, service departments, or other appropriate depository/channels to verify the Veteran's claimed stressors [exposed to enemy rocket and mortar attack on the first night (December 1967) he arrived at Long Binh while attached to Company D, 459th Signal Battalion, 41st Signal Battalion and exposed to multiple attacks and bombings while stationed at his last duty station at the Air Force Base in Da Nang while attached to 1st Signal Battalion, Company C (or Company A), 37th Signal Battalion] and any other stressor if sufficiently identified. All efforts to obtain the information should be documented in the claims file. 3. Obtain VA treatment records dating since March 2012 pertaining to any treatment the Veteran received for his psychiatric disorder from VA Shoals Area (Florence) Clinic (parent facility, Birmingham VAMC). All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 4. Obtain records from ECM Hospital identified by the Veteran in VA Form 21-4142 executed in April 2004. Efforts to procure the records including obtaining an updated release form, if necessary, should be in compliance with 38 C.F.R. § 3.159(c)(1). If unable to obtain the identified records, notice of the same to the Veteran must comply with 38 C.F.R. § 3.159(e). 5. 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. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. 6. Undertake efforts to obtain records on any physical examinations of the back the Veteran underwent in 1970 in connection with Reynolds Metal Company (now known as Wise Alloys). 7. After completion of the above development, return the October 2007 VA examination report along with the claims file and a copy of this remand to the examiner for a clarification of the opinion rendered in the left knee and right knee claims. In regard to the examiner's opinion that he "believe[s] that it is very unlikely that these two sets of conditions have any relationship whatsoever" and that he did "not believe that [the Veteran's] MCL sprain or his hemarthrosis caused his current degenerative disease of the left knee," the Board asks that the examiner provide a reason for the stated conclusion. Also, in addressing the right knee, the examiner opined that it was "extremely unlikely" that the Veteran's right knee strain was related to his "service connected pain in the left knee." This statement must be clarified as the VA examiner previously rendered a finding that the Veteran's left knee problems were not related to active service. Lastly, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) the right knee disorder is etiologically related to an incident of the Veteran's military service, including instability of the right knee noted on examination in November 1968. The examiner should provide a complete rationale for the opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he should provide a complete explanation stating why this is so. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. 8. Send the claims file and a copy of this remand to the VA facility where the Veteran's April 12, 2012, VA hearing loss and tinnitus DBQ was conducted and ask the VA examiner who completed this DBQ to provide an addendum. Following a review of the claims file, this examiner is asked to provide a clarification of opinion. First, this examiner must clarify the last sentence in the rationale for her April 2012 opinion that the Veteran's bilateral hearing loss is not related to active service. This sentence reads, " limits at time of separation exam, his current hearing loss is less likely..." This examiner should explain what she was trying to say here in her April 2012 rationale. Second, this examiner must clarify the first sentence in the rationale that she provided in April 2012 concerning her opinion that the Veteran's tinnitus is not related to active service. This sentence reads, "If there is no hearing loss or changes, the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence." This examiner should explain what she was trying to say here in her April 2012 rationale, particularly in light of the clinical findings that bilateral sensorineural hearing loss and tinnitus were present at that examination. A complete rationale must be provided for any opinions expressed. If this examiner is not available, then send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. The examiner must provide a supporting rationale for the opinions provided. If it is determined that another examination is necessary, then such should be scheduled. 9. If, and only if, a verified stressor is obtained, return the August 2011 VA examination report along with the claims file and a copy of this remand to the examiner for an addendum in the psychiatric claim. The examiner is asked to opine on whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's anxiety disorder not otherwise specified is etiologically related to events in service. The examiner must accept as fact the occurrence of any verified stressor. The examiner should provide a complete rationale for the opinion provided. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. 10. Thereafter, readjudicate the claims. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH Acting 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).