Citation Nr: 1318243 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-46 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1969 and from March 1970 to March 1973. He also served from July 1973 to March 1976, but was discharged under other than honorable conditions. The AOJ determined that this service was dishonorable for VA purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran originally filed a service connection claim for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (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. Accordingly, and given that the record reflects psychiatric diagnoses other than PTSD, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. On the Veteran's November 2010 VA Form 9, Appeal to the Board, he limited his appeal to those issues listed on the title page. As such, the Board will not address the claim for entitlement to service connection for chloracne. In addition, while the Veteran requested a Travel Board hearing on the VA Form 9, a December 2010 report of general information reflects his desire to withdraw his request for a Board hearing. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. The issues of entitlement to service connection for bilateral hearing loss disability and tinnitus 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. FINDINGS OF FACT 1. The Veteran's major depressive disorder is attributable to service. (The grant includes all depressive/mood disorder diagnoses.) 2. The Veteran does not have PTSD. CONCLUSIONS OF LAW 1. Major depressive disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition of the claim for service connection, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). With respect to the current appeal, this list includes psychoses. See 38 C.F.R. § 3.309(a). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). 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 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. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. As an initial matter, the Board finds that the Veteran did not engage in combat with the enemy. As discussed below, the Veteran served in Vietnam and alleges that he faced incoming mortar and artillery fire while stationed Vietnam. However, a finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). The Veteran's DD Form 214 reflects that he received the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal, none of which, by themselves, demonstrate combat. In addition, the Veteran's military occupation specialty was a cook. During his March 2011 VA examination and in various written statements, the Veteran did not describe an actual fight or encounter with a military foe or hostile unit or instrumentality. Based on the above, the Board finds that the Veteran did not engage in combat with the enemy and the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case. The Veteran claims that he has a psychiatric disorder, including PTSD, due to the stressful circumstances of his service in Vietnam. He has indicated that his base was subject to mortar attacks and artillery fire on numerous occasions. The Veteran's service treatment records do not reflect any complaint, treatment, or diagnosis with respect to the claimed psychiatric disorder, to include PTSD. The Veteran was noted to be normal from a psychiatric standpoint on a December 1972 separation examination. The Veteran's service personnel records confirm that he served in Vietnam from April 1970 to November 1971. His military occupational specialty was a cook. As noted above, he is in receipt of the Vietnam Service and Campaign Medals. These records also reflect that the Veteran was discharged for the good of the service in March 1976, after a period of unauthorized absence from March 1974 to January 1976. Records regarding this discharge reflects that the Veteran's "personal problems appear[ed] so overwhelming to him" that he felt he could no longer fulfill his military obligation. The Veteran submitted a statement indicating that he had some "emotional problems" because he "did not know if he [was] married or not." He felt that if he was discharged, he could return home to solve his problems. Following service, VA outpatient treatment records include a November 2003 report reflected that the Veteran presented with a provisional diagnosis of polysubstance abuse, in remission, alcohol dependence, nicotine dependence, rule out PTSD, and depression not otherwise specified. The Veteran reported depression since Vietnam and indicated that he experienced flashbacks of his experiences there. He reported that he was a cook in the medical battalion but also served on guard duty. He drove supply trucks and rode in helicopters to deliver food to the troops. The examiner noted that the Veteran had some symptoms of PTSD. However, after mental status examination, diagnoses of polysubstance abuse, in remission, alcohol dependence, nicotine dependence, rule out PTSD, and depression not otherwise specified, were assigned. An April 2004 mental health progress report notes that the Veteran ruminated about issues related to his experiences in Vietnam as well as stress in his family. A July 2007 treatment report reflects that the Veteran reported PTSD symptoms in regard to his Vietnam service. He reported combat in Vietnam and that he had not been the same since. After mental status examination, diagnoses of PTSD, alcohol abuse, tobacco dependence, and major depressive disorder, were assigned. Vet Center treatment records dated in 2007 and 2008 note that the Veteran was seen for counseling sessions. These records reflect a diagnosis of mood disorder. An August 2007 entry reflects that the Veteran initially sought psychiatric treatment in approximately 2002 at his wife's urging. A March 2008 VA outpatient treatment report reflects an assessment of history of depression. On VA psychiatric examination in March 2011, the examiner indicated that he reviewed the Veteran's entire claims file and psychiatric treatment records. The Veteran reported that he was initially prescribed paroxetine by his primary care physician, and then referred for mental health evaluation in 2003. He indicated that he began drinking alcohol at age 19 and that he drank excessively in the past, with his last use in 2009. He also had a past history of drug abuse. The Veteran indicated that his depression began in 1973. As regards his pre-military history, the Veteran indicated that his mother became physically and emotionally abusive prior to his parent's divorce. He noted that she also had problems with alcohol abuse. As regards his military history, the Veteran indicated that he served as a cook in a medical battalion, and that he also served on guard duty. While in Vietnam, he delivered food to the troops via helicopter or truck. He reported that he experienced incoming weapons fire on a regular basis while on the ground or while aboard helicopters. The Veteran also reported that he saw people seriously injured. He stated that his immediate reaction was that he "felt it was his patriotic duty" and that he "had to defend our perimeter." The examiner pointed out that the Veteran did not report a specific index traumatic event, nor did he relate feelings of horror, fear, or helplessness. Thus, he determined that the Veteran's claimed military stressors did not meet Criterion A for a diagnosis of PTSD. After performing a complete mental status examination, the examiner diagnosed major depressive disorder and alcohol dependence, sustained full remission. He reiterated that the Veteran did not meet the criteria for a diagnosis of PTSD. He noted that the Veteran's pre-military functioning had some indications of maternal physical and emotional abuse and alcoholism, which were some early risk factors towards possible manifestation of psychiatric symptomatology as an adult. He determined that it is at least as likely as not that the Veteran's major depressive disorder is related to military stressors and atrocities and the deaths of others. The examiner also noted that the Veteran's past alcohol dependence appeared to be likely related to his attempts to manage depressive symptoms over the years. As noted above, the first requirement for service connection for PTSD is a medical diagnosis of the condition. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). The above-cited evidence reflects conflicting medical evidence on the question of whether the Veteran actually meets the diagnostic criteria for PTSD. While the March 2011 VA examination report reflects that the Veteran does not meet the criteria for the diagnosis, VA outpatient treatment records document diagnosis and treatment of PTSD. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the March 2011 VA examiner's opinion that the Veteran does not meet the criteria for a diagnosis of PTSD as highly probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and medical records and examining the Veteran. The examiner noted the pertinent history, elicited and described the Veteran's symptoms in detail, described the specific diagnostic criteria set forth in DSM-IV, and provided a reasoned analysis of the case. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board finds this opinion highly probative. By contrast, the other medical evidence of record indicating a diagnosis of PTSD-namely VA outpatient treatment records-does not indicate that the VA treatment providers had the opportunity to review the Veteran's claims file. Moreover, unlike the VA examiner, these treatment providers merely concluded that the Veteran's self-reported stressors and symptoms were sufficient to meet the criteria for the diagnosis. They did not provide any rationale for the conclusions reached or specifically discuss each the PTSD criteria, as the VA examiner provided. Thus, the most persuasive, competent evidence on the question of current diagnosis of PTSD weighs against the claim. The Board has also considered the lay statements of the Veteran to the effect that he has PTSD. Lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372 (2007). Given that the Veteran's treatment records reflect previous diagnosis of PTSD, the Veteran appears to reporting a contemporaneous diagnosis and is thus competent in this regard. However, as noted above, this diagnosis was rendered without discussion of whether the Veteran's self-reported stressors and symptoms were sufficient to meet the criteria for the diagnosis. The treatment providers did not provide any rationale for the conclusions reached or specifically discuss each the PTSD criteria. Accordingly, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the March 2011 VA examiner, who determined that the Veteran did not meet the criteria for diagnosis of PTSD. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, without persuasive evidence of current diagnosis of PTSD, there is no basis upon which to award service connection, and discussion of the remaining criteria of 38 C.F.R. § 3.304(f) is unnecessary. As to the issue of whether service connection is warranted for an acquired psychiatric disorder other than PTSD, the record clearly establishes that the Veteran had been diagnosed with major depressive disorder. In addition, the March 2011 examiner determined that the Veteran's major depressive disorder is more likely than not related to service. Thus, there is a medical basis for a finding that there exists a medical nexus between the Veteran's service and his current acquired psychiatric disorder, currently diagnosed as major depressive disorder. The Board notes that this opinion of the VA examiner is the only medical opinion to address the nexus question. Significantly, this opinion of the March 2011 VA examiner Given the totality of the evidence, the Board finds that the criteria for service connection for the Veteran's as major depressive disorder, are met. In sum, the Veteran does not have PTSD, and therefore service connection for PTSD is not warranted. However, the weight of the evidence supports a relationship between his major depressive disorder and in-service events. Accordingly, service connection for the acquired psychiatric disorder manifested by major depressive disorder, must be granted. ORDER Entitlement to service connection for major depressive disorder is granted. Entitlement to service connection for PTSD is denied. REMAND The Board's review of the claims file reveals that additional development of the remaining claims for service connection for bilateral hearing loss disability and tinnitus are warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran reports that he was exposed to loud noise during his service in Vietnam, including artillery fire, mortars, and helicopter engines. However, the Veteran was not provided a VA examination and medical opinion on hearing loss and tinnitus, as the RO determined that there was no evidence of acoustic trauma in service. The Veteran is competent to describe his exposure to loud sounds, and his report is credible and consistent with his service. The question of whether the exposure to loud sounds constitutes acoustic trauma is one that requires medical knowledge. Moreover, while the Veteran's service treatment records document that his hearing was within normal limits at the time of discharge and there were no documented complaints of tinnitus, it is not necessary for a hearing loss disability to be present at separation in order to establish service connection. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Rather, when there is evidence of noise exposure in service and a current hearing loss disability, the Veteran is entitled to a VA examination with a medical opinion addressing the question of causation. While a current hearing loss disability is not documented in this case, VA outpatient treatment records documents complaints of hearing loss and he has not yet been evaluated. Tinnitus is known to be associated with hearing loss and, additionally, the Veteran has indicated that he experiences tinnitus as a result of in-service noise exposure. In light of this a medical opinion addressing the etiology of tinnitus should also be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection for a bilateral hearing loss disability and tinnitus. If the Veteran identifies any other pertinent medical records that have not been obtained, the RO/AMC should undertake appropriate development to obtain a copy of those records. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the RO/AMC should arrange for the Veteran to undergo audiological examination by a qualified examiner. The entire claims file must be made available to the examiner designated to examine the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify whether the Veteran has a hearing loss disability and tinnitus. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current a current hearing loss disability and tinnitus were incurred in service or are otherwise medically related to service, to include noise exposure therein. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 3. Then, the RO/AMC should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite 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). 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs