Citation Nr: 1317571	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  09-18 459	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 

3.  Entitlement to service connection for chronic cough, to include as due to an undiagnosed illness. 

4.  Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness. 

5.  Entitlement to service connection for a back disorder, to include as due to an undiagnosed illness. 

6.  Entitlement to service connection for a headache disorder, to include as due to an undiagnosed illness. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from July 2004 to February 2005 and from November 2005 to July 2007.  The Veteran's active duty also included service within the Southwest Asia Theater, specifically Iraq, from March 2006 to June 2007.  He is the recipient of the Combat Action Badge.

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 St. Paul, Minnesota, which denied the issues on appeal along with entitlement to service connection for tinnitus.  In a May 2009 rating decision, the RO granted the Veteran's tinnitus claim.  As such is a grant of the full benefits sought on appeal, such issue is no longer before the Board.  

Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, the Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 5   (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. 


The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to service connection for bilateral hearing loss is decided herein.  The remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if any action on his part is required.


FINDING OF FACT

At no time during the pendency of the appeal does the Veteran have a current bilateral hearing loss disability for VA purposes.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473   (2006).  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).    

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a July 2007 letter, sent prior to the initial January 2008 rating decision advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, the letter informed the Veteran of the evidence and information necessary to establish disability ratings and an effective dates in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, the Veteran's available service treatment and personnel records, as well as VA and private treatment records, have been obtained and considered.  The Board notes that it appears that the Veteran's service treatment records are incomplete as his service entrance and separation examinations are not of record.  The Board notes that the RO has made numerous attempts to obtain these missing records from the National Personnel Records Center (NPRC), as well as from the Veteran personally.  In a Formal Finding on the Unavailability of an Entrance and Separation Examination Service Treatment Records issued in September 2009, the RO noted that the following efforts to obtain these missing records were attempted: (1) VCAA letter dated July 19, 2007- no response from the Veteran, (2) PIES request, (3) copies of service treatment records from National Guard Unit- does not contain entrance or separation examinations, and (4) 10-day letter dated to the Veteran.  In this regard, the Veteran was advised in a September 2009 letter that the RO had formally determined that his military entrance and discharge examinations cannot be located and were thus unavailable for review.  The Veteran was advised that he may submit copies of such records; however, to date, he has not done so.  Thereafter, the RO again issued a Formal Finding on the Unavailability of an Entrance and Separation Examination Service Treatment Records in January 2010.  The noted the previous four steps taken and added a fifth: (5) DPRIS Web AG5-Medical/Physical/Exam/Findings request dated January 5, 2010- records returned did not contain entrance or separation examinations.  It thus appears the RO properly searched alternative sources in an attempting to obtain such records.  See Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to her claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative medical records).  The Board realizes in cases such as these, VA has a heightened duty to explain its findings and conclusions.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis of the Veteran's claim was undertaken with this duty in mind.  

The Veteran has not reported, and neither does the evidence of record show, that he was in receipt of Social Security Administration (SSA) disability benefits for the claimed disorder.  Absent any evidence showing that the Veteran was in receipt of said benefits for the claimed disorder, VA need not attempt to obtain his SSA records.  Golz v. Shinseki, 590 F.3d 1317, 1323 (2010).  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  Therefore, the Board finds that VA has satisfied its duty to assist in this regard.

Additionally, the Veteran was afforded a VA audiological evaluation for his claimed bilateral hearing loss in April 2009.  The Board finds that the VA examination is adequate to decide the issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in active service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159. 

In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

The Board also observes that in light of the Veteran's receipt of a Combat Action Ribbon, the provisions of 38 U.S.C.A. § 1154(b)  are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran.  However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  Clyburn v. West, 12 Vet. App. 296, 303 (1999). 

Stated in a more specific manner, a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service.  38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat Veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature."  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In the present case, the Veteran served in combat as evidenced by his receipt of a Combat Action Badge.  Thus, in-service noise exposure associated with such combat duty is acknowledged.  See 38 U.S.C.A. § 1154(b).   However, as explained below, the claim fails as a current diagnosis of bilateral hearing loss, for VA purposes, has not been shown at any point during the pendency of the claim. 

In this case, the Veteran's service treatment records (STRs) are silent with respect to any bilateral hearing loss.  Likewise, post-service private and VA treatment records are negative for a diagnosis of bilateral hearing loss.

At the April 2009 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
20
25
LEFT
10
0
10
20
30

Speech audiometry revealed speech recognition ability of 100 percent in both ears.

Significantly, hearing loss did not exceed 40 decibels or more for any of the frequencies of 500, 1000, 2000, 3000, and 4000, nor did it exceed 26 decibels for at least three of these frequencies in either ear.  Speech recognition scores using the Maryland CNC word list was not less than 94 percent in either ear.  Therefore, the Veteran does not have a current disability of bilateral hearing loss for VA compensation purposes.  38 C.F.R. § 3.385.

As noted, the Board concedes that the Veteran was exposed to acoustic trauma in service.  Nevertheless, in comparing the results of the April 2009 VA examination to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran currently suffers from a bilateral hearing loss disability as defined for VA compensation purposes.  Importantly, no other competent medical evidence in the record indicates a hearing loss disability in accordance with 38 C.F.R. § 3.385.

The Board has also considered the Veteran's contentions that he suffers from hearing loss due to noise exposure in service.  Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Here, the Veteran is competent to report symptoms while in service and since service.  However, as a lay person, he is not competent to offer a diagnosis of bilateral hearing loss as he does not possess the requisite specialized knowledge.  In this regard, such a diagnosis requires the administration and interpretation of audiological test results.  Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of right ear hearing loss.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Therefore, as the objective medical evidence is against the finding that the Veteran's bilateral hearing loss rises to the level that allows for compensation under the governing law and regulation, the Board finds that he does not have a current diagnosis of bilateral hearing loss for VA purposes during the pendency of the claim.  As such, service connection for bilateral hearing loss is not warranted.   

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

Service connection for bilateral hearing loss is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran claims that he is entitled to service connection for an acquired psychiatric disability to include PTSD, depression, and anxiety due to his active military combat service.  He also contends that service connection for a sleep disorder, a back disorder, a headache disorder, and chronic cough is warranted as directly related to his service, to include as a result of undiagnosed illnesses based on his service in Southwest Asia from March 2006 to June 2007.

Relevant to the Veteran's psychiatric disorder claim, as noted, the Veteran served in combat.  As such, an in-service stressor related to his combat service is conceded.  On an August 2008 VA treatment record, it was noted that the Veteran endorsed some PTSD symptoms; however, on April 2009 VA psychiatric examination, other than alcohol abuse, no other Axis I diagnosis was found.  Subsequently, in a February 2010 VA treatment record, it was noted that, while the Veteran had initially been diagnosed with an adjustment reaction, his symptoms have persisted and he did have some PTSD.  Additionally, a May 2010 problem list included PTSD and adjustment disorder with mixed anxiety and depressed mood.

Moreover, in a March 2011 statement, subsequent to the most recent June 2010 supplemental statement of the case (SSOC), the Veteran reported that he has been diagnosed with PTSD and depression and had been placed on medications.  He indicated that he is currently being treated at the St. Cloud VA Medical Center.  A review of the Veteran's claims file, to include Virtual VA, reveals VA treatment records dated only through May 2010.  As the Veteran has indicated that he is currently being treated by VA for PTSD and depression, to include medications for such, the Board notes that there are outstanding VA treatment records that need to be obtained.  

Thereafter, the AOJ should afford the Veteran another VA examination so as to determine the current nature of his acquired psychiatric disorder and whether such is related to his military service, to include his combat service.      

Additionally, the Board finds that a remand is necessary in order to afford the Veteran an appropriate VA examination(s) so as to determine the current nature and etiology of his chronic cough, sleep disorder, headaches, and back pain.  In this regard, the Board observes that he was previously provided with a VA examination; however, the Veteran should be afforded a new VA examination that addresses whether or not the disorders are related to his military service, to include as due to an undiagnosed illness.

Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War.  There must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4.  By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification.  There must be a minimum of a six-month period of chronicity.  There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War.  38 U.S.C.A. § 1117; 38 C.F.R. 3.317.  If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply.  VAOPGCPREC 8-98 (Aug. 3, 1998).

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d)  warrants a presumption of service-connection.  38 C.F.R. § 3.317(a)(2)(i).  For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).  For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).

In a July 2007 statement, the Veteran reported that his current back pain, headaches, constant cough, and sleeping problems were as a result of serving in Iraq.  He indicated that he had been experiencing the problems since returning home.  The Veteran's available service treatment records are silent for any symptoms of back pain, headaches, or sleeping problems.  The records reflect numerous occasions where the Veteran was treated for a cough.

During a July 2007 VA primary care examination, the Veteran reported complaints of headaches, low back pain, difficulty sleeping, and a dry cough since returning from Iraq.

In April 2009, the Veteran underwent a VA general examination and reiterated his contentions.  He specifically reported that, while in-country in Iraq, he started to experience difficulty falling asleep; toward the end of his tour in Iraq, he started to experience low back pain; and, while in Iraq he experienced a chronic cough and headaches.  In May 2009, the examiner who performed the examination, stated that, in regard to the Veteran's claimed chronic cough, insomnia, lumbar pain, and headaches, there was no objective evidence or pathology for a current confirmed diagnosis, and that his headaches were just common headache.

The Board notes, that given the Veteran's military history of serving in Southwest Asia, an examination to determine whether his disorders are due to an undiagnosed illness associated with Persian Gulf War service is warranted.

Moreover, as relevant to all of the Veteran's claims, he should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his acquired psychiatric disorder, chronic cough, sleep disorder, back disorder, and headaches.  After securing any necessary authorization from him, all identified treatment records, to include those from the St. Cloud VA facility dated from May 2010 to the present, should be obtained for consideration in his appeal.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be given an opportunity to identify any healthcare provider who treated him for his acquired psychiatric disorder, chronic cough, sleep disorder, back disorder, and headaches.  After securing any necessary authorization from him, obtain all identified treatment records, to include those from the St. Cloud VA facility dated from May 2010 to the present.  All reasonable attempts should be made to obtain any identified records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. 
§ 3.159(e).

2.  After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.

The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. 

The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of his military combat service.  

If the examiner determines that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD, he or she should explain why.  Additionally, the examiner should reconcile any diagnosis provided with the remainder of the evidence of record, to include the PTSD symptomatology noted in the August 2008 and February 2010 VA mental health treatment records.

For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include his combat service.

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed psychiatric disorder and the continuity of symptomatology.  The rationale for any opinion offered should be provided.

3.  After all outstanding records have been associated with the claims file, the Veteran should also be afforded an appropriate VA examination(s) so as to determine the current nature and etiology of his back pain, headaches, chronic cough, and sleeping problems.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.

Back pain, headaches, and sleeping problems
The examiner should specifically state whether the Veteran's symptoms of back pain, headaches, and sleeping problems are attributed to a known clinical diagnosis. 

If diagnosed disorders are established, the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during any period of the Veteran's active duty service or is otherwise related to such service.  

If the Veteran's symptoms of back pain, headaches, and sleeping problems cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 

The rationale for any opinion offered should be provided.

Chronic cough
The examiner should specifically state whether the Veteran's symptoms pertaining to his chronic cough is attributed to a known clinical diagnosis. 

If a diagnosed disorder is established, the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during any period of the Veteran's active duty service or is otherwise related to such service.  In addressing this question, the examiner should consider the May 2006 service treatment record that reflect complaints and treatment for cough.

If the Veteran's symptoms of chronic cough cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 

The rationale for any opinion offered should be provided.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  Relevant to the claims other than the Veteran's psychiatric claim, such claims should be considered on both a direct basis and due to an undiagnosed illness.  If any claim remains denied, the Veteran and his representative should be issued a SSOC.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the U.S. 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).



______________________________________________
A. JAEGER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs