Citation Nr: 1318749 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-49 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from February 1982 to November 1985 and from March 1986 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. (The decision below addresses the issue of entitlement to service connection for PTSD. The issues of entitlement to service connection for hearing loss and tinnitus are addressed in the remand that follows this decision.) FINDING OF FACT There is no credible supporting evidence of the Veteran's claimed in-service stressors. CONCLUSION OF LAW The Veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of the Veteran's claim, the RO sent to him a letter dated in September 2008 wherein he was notified of the evidence required to substantiate his claim of service connection for PTSD. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran of the need to submit specific details regarding the stressful incident(s) in service that led to his PTSD. The letter also included the notice elements required by Dingess, supra. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the September 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his service connection claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that no further assistance is necessary in connection with the Veteran's claim of service connection for PTSD. The evidence includes service treatment records (STRs), service personnel records, and post-service VA treatment records, which include psychological consultation reports and mental health treatment records. The Veteran was afforded several opportunities to provide specific information regarding his alleged in-service stressors, but failed to do so, to specifically include failing to respond to the RO's request that he provide the approximate date, within a two-month range, that the alleged stressful event(s) occurred. In this regard, the Board notes that although it is remanding the Veteran's claims of service connection for hearing loss and tinnitus, in part, to obtain legible copies of the Veteran's STRs, because, as will be discussed in further detail below, the outcome of this case turns on the lack of information provided by the Veteran regarding his alleged in-service stressor, the Board finds that any information contained in his STRs would not affect the outcome of this appeal, especially in light of the fact that the Veteran has not alleged in-service treatment for mental health symptoms. Moreover, while the service personnel records associated with the claims folder are minimal and do not document the Veteran's foreign service evidenced by his DD Form 214 for the period of service from February 1982 to November 1985, the Board finds no reason to remand the matter to attempt to obtain a more comprehensive service personnel file because, as will be discussed in further detail below, the Veteran has not provided the information required to attempt verification of his alleged stressor. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street). In this regard, the Board notes that the Veteran made a vague assertion to a VA clinician that while in service, he was involved in reconnaissance work in the Philippines, during which time he was involved in tracking communist activity and in ambushing and sniping enemy fighters. The Veteran has specifically denied ever having engaged in combat with the enemy. The Board is aware that the Veteran's lay statements alone may be sufficient to establish the occurrence of this claimed in-service stressor under the provisions 38 C.F.R. § 3.304(f), provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, which would require further corroboration with evidence potentially contained in his service personnel records. However, as will be discussed in further detail below, because the Veteran has not provided enough detail with regard to his alleged stressor, such that the Board can find that the stressor is related to his "fear of hostile military or terrorist activity," as defined by regulation, the Veteran's lay testimony alone is not sufficient to establish the occurrence of said stressor. In sum, the Board finds that the evidence currently of record is sufficient for the Board to arrive at a decision on the matter decided herein, as the outcome of the case turns on the lack of information supplied by the Veteran regarding his alleged in-service stressors, despite twice being specifically requested to provide additional details concerning the facts and circumstances of the stressful event(s) experienced in service. As noted above, the duty to assist is not a one-way street. Wood, supra. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Id. Here, the Veteran has not provided sufficient information to allow the VA to seek additional information to corroborate his claimed stressor, and thus, the Board finds that VA's duty to assist has not been violated in this case. See 38 U.S.C. § 5103A(b)(1), (c)(2) (West 2002) (requiring claimant to "adequately identify[y]" records and "furnish[] information sufficient to locate" potentially relevant records). The Board notes that the Veteran has not been afforded a VA examination in connection with his claim. In accordance with the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient medical evidence to decide the claim, but there is- (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the instant case, the Board finds that a medical examination and/or opinion is not necessary as the outcome of claim turns not on whether the Veteran has a diagnosis of PTSD linked to a claimed in-service stressor, but rather, on whether there is sufficient evidence showing that the claimed in-service stressor actually occurred, a question that is not medical in nature. Accordingly, the Board finds that there is no requirement to obtain a VA medical examination in connection with the Veteran's claim of service connection for PTSD. See McLendon, 20 Vet. App. at 85-86; see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C.A. § 5103A(d)(2)(B)]"). The Board again notes that, as will be discussed in further detail below, the Veteran has not provided information regarding his alleged in-service stressor sufficient to permit the Board to find that the claimed stressor is related to his "fear of hostile military or terrorist activity," as defined by regulation. Thus, although the Veteran's VA treatment records contain a diagnosis of PTSD, an opinion by a psychiatrist or psychologist regarding whether the claimed in-service stressor is sufficient to support the diagnosis of PTSD is not necessary under the provisions of 38 C.F.R. § 3.304(f)(3) because that regulation is not implicated in this case. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (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. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f) (2012). Unless it is determined that a veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's alleged stressor(s) generally must be established by official service records or other credible supporting evidence. Cohen, supra; Doran v. Brown, 6 Vet. App. 283 (1994); 38 C.F.R. § 3.304(f). However, if the claimed non-combat stressor is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f)(3). During a January 2008 VA psychiatry consultation, the Veteran reported that while in service, he was involved in reconnaissance work in the Philippines, which required tracking communist activity and in ambushing and sniping enemy fighters. The Veteran stated that he had nightmares about his experiences almost every night. The clinician diagnosed the Veteran as having PTSD. A May 2008 social work note indicated that during service, the Veteran "trained men on bombs and explosives" and that the Veteran had no mental health problems prior to service. The clinician stated that the Veteran did not have a chance to go into his military past during that evaluation. At the outset, the Board notes that a September 2008 notice letter requested that the Veteran provide specific details of the stressful incident(s) in service that resulted in his PTSD. He was asked to complete a PTSD questionnaire and specify the location and approximate time, within a two-month date range, of the incident in question. In response, the Veteran indicated that he had no further information or evidence to submit to VA to substantiate his claim. A completed PTSD questionnaire was not returned. In February 2009, the RO issued a formal finding that the information regarding the Veteran's stressor was insufficient to submit to the U.S. Army and Joint Services Records Research Center (JSRRC) or the United States Marine Corps for verification. In July 2009, the RO issued a deferred rating decision wherein it was noted that the Veteran had provided vague accounts of reconnaissance duty, sniping, and dangerous duty in the Philippines. A letter was sent to the Veteran that same month requesting more specific details concerning his alleged in-service stressors. The letter specifically noted that the information already of record did not meet the minimum level of detail necessary to permit a request for verification from the JSRRC and informed him that failure to supply the requested information could result in a denial of his claim. The Veteran did not respond to the letter and his December 2009 VA Form 9 (Appeal to the Board of Veterans' Appeals) did not contain any more detail regarding his alleged in-service stressor. Rather, the Veteran simply stated that it was a proven fact that one did not need to encounter hostile fire or kill a person to develop PTSD. In the instant case, there is no evidence that the Veteran engaged in combat with an enemy force and the Veteran himself denies having engaged in combat. As to whether the Veteran's claimed in-service stressors are related to his "fear of hostile military or terrorist activity," the regulation defines that term 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, 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). The Board acknowledges that the Veteran's vague assertions of having engaged in reconnaissance missions in the Philippines, during which time he was involved in tracking communist activity and in ambushing and sniping enemy fighters, is the type of activity that may have caused him to experience, witness, or confront actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. However, for a claimed non-combat stressor to be related to a veteran's "fear of hostile military or terrorist activity," the regulation is clear that the response to the event or circumstance must have "involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. Here, the Veteran has not alleged that his response to the events experienced in service was that of fear, helplessness, or horror. Although he reported currently suffering from nightmare about his experiences, he has provided very little information concerning his actual experiences in service, to include how he felt as a result of the allegedly traumatic or stressful events. Without any indication from the Veteran that the stressful events experienced in service evoked a response that "involved a psychological or psycho-physiological state of fear, helplessness, or horror," the Board cannot conclude that the alleged non-combat stressor is related to his "fear of hostile military or terrorist activity," as that term is defined by regulation. Id. In this regard, the Board is cognizant of the fact that a diagnosis of PTSD rendered by a mental health professional is presumed to have made in accordance with the DSM, Cohen, 10 Vet. App. at 140, and that such a diagnosis requires having "experienced, witnessed, or been confronted by an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and a response that "involved intense fear, helplessness, or horror," DSM-IV at 209. The Board cannot however conclude that the diagnosis of PTSD contained in the record can substitute for a finding that the Veteran's response to alleged stressful incident involved intense fear, helplessness, or horror because to do so would render the portions of 38 C.F.R. § 3.304(f)(3) that require specific evidence concerning the alleged in-service stressor superfluous in every instance where a claimant received a diagnosis of PTSD that complied with the DSM-IV criteria. See Glover v. West, 185 F.3d 1328, 1332 (Fed.Cir.1999) (noting that regulatory interpretation should "attempt to give full effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or regulatory language as possible"). Accordingly, because there is no evidence that the Veteran engaged in combat with an enemy force and the evidence is insufficient to find that his claimed in-service stressors are related to his "fear of hostile military or terrorist activity," as defined by 38 C.F.R. § 3.304(f)(3), for an award of service connection to be made, the Veteran's alleged stressors must be corroborated by credible supporting evidence. Cohen, 10 Vet. App. at 138. In this regard, the Board notes that the JSRRC has advised that they can only research stressful events if provided with several items of specific information, including the veteran's claim number and Social Security number, a two-month specific date range for when the stressful event occurred, the veteran's unit of assignment during the stressful event, and the geographic location where the stressful event occurred. Despite being asked for detailed information regarding his claimed stressors, to specifically include the approximate date of the alleged stressful events, the Veteran provided no additional information regarding his reconnaissance duty so as to enable VA to submit a request for verification of the alleged stressors. The Board again stresses that the duty to assist is not a one-way street. See Wood, supra. Accordingly, as the Veteran has not submitted credible supporting evidence that any alleged in-service stressor actually occurred and did not provide the minimum detail required to permit a request for verification of the alleged stressor, the Board has no choice but to deny the Veteran's claim of service connection for PTSD. Indeed, the only evidence regarding the Veteran's claimed in-service stressors are his own lay accounts. However, as discussed above, the Veteran's lay testimony alone is insufficient to establish the occurrence of the stressor in this case. See Cohen, 10 Vet. App. at 142. Thus, because the evidence of record fails to contain credible supporting evidence that an alleged in-service stressors actually occurred, service connection for PTSD cannot be granted. See 38 U.S.C.A. § 5121(a); Cohen, supra; 38 C.F.R. § 3.304(f). ORDER Entitlement to service connection for PTSD is denied. REMAND The evidence demonstrates that the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2012). The report of a November 2008 VA audiology examination confirms this. The Veteran's DD-214 forms list his military occupational specialties (MOSs) as that of a Low Altitude Air Defense (LAAD) Gunner (MOS 7212) and an Ammo Tech (MOS 2311). Accordingly, the Board concedes exposure to noise in service, as it is consistent with the Veteran's in-service duties. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). Thus, the question is one of nexus. Relevant to the issue of nexus, the record contains the report of a November 2008 VA audiology examination. The audiologist stated that she was unable to provide an opinion regarding nexus without resorting to mere speculation on account of the fact she was not provided with the claims folder prior to her examination of the Veteran and thus had no evidence before her upon which to base an opinion. An addendum opinion was obtained in January 2009, wherein the reviewer, upon review of the claims folder, opined that it was less likely than not that the Veteran's hearing loss and/or tinnitus was caused by or the result of service. The reviewer indicated that the "induction hearing test was normal, but there was not a separation test in the file." The reviewer noted in-service treatment for ear infections, but stated that the type of infection for which the Veteran received treatment would not cause his current hearing loss. At the outset, the Board notes that the claims folder contains copies of the Veteran's STRs that were furnished by the Veteran. The claims folder also contains STRs on microfiche, but legible copies of those documents have not been associated with the record. As the Board cannot be sure that that the STRs submitted by the Veteran are complete in nature and the records contained on the microfiche may be relevant to the claims currently on appeal, a remand is necessary to ensure that printed copies of all available STRs are associated with claims folder. The Board finds that a remand of the matter is also warranted for the Veteran to be provided with a new VA audiological examination. This is so because the examination report and addendum opinion currently of record are not adequate. A medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Board notes that, although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison, supra, it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Stefl, 21 Vet. App. at 124. Indeed, the opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. Here, it appears that the audiologist based the negative nexus opinion on the fact that the ear infections for which the Veteran was treated in service are not of the type that would cause hearing loss. There is no discussion of the Veteran's reported acoustic trauma; nor did the audiologist provide any rationale for finding that the Veteran's tinnitus is not related to service. Moreover, given the potential existence of relevant records contained on the microfiche, it cannot be concluded that the audiologist's opinion was based on all relevant medical history. Given these deficiencies, the Board finds that the opinion is inadequate. See Stefl and Ardison, both supra. Thus, the Board finds that a remand of the claims of service connection for hearing loss and tinnitus is necessary because there is not sufficient competent medical evidence on file to make a decision on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 4.2 (2012) (if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). In this regard, the Board has considered the Veteran's lay assertions that his hearing loss and tinnitus are related to his in-service noise exposure. Although the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service, etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to his hearing loss or tinnitus. See Jandreau, supra. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. After making legible copies of any service records maintained on microfiche for an examiner to review, schedule the Veteran for a VA audiology examination. The claims folder, and a copy of this remand, must be provided to and reviewed by the audiologist in conjunction with the examination. All studies, tests, and evaluations should be performed as deemed necessary by the audiologist and the results of any testing must be included in the examination report. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The audiologist should review all of the service records pertaining to the Veteran's hearing, and any post-service records contained in the claims folder, to specifically include the Veteran's lay statements regarding his in-service noise exposure and hearing loss. The audiologist must also consider the impact of the Veteran's conceded in-service noise exposure. After considering the pertinent information in the record in its entirety, the VA examiner should provide opinions with respect to whether it at least as likely as not that the Veteran's current hearing loss and/or tinnitus had its clinical onset in service or is otherwise related to his military service, to include his conceded in-service noise exposure/acoustic trauma. If the audiologist finds that delayed onset hearing loss weighs against a finding that such hearing loss is traceable to military service, the audiologist must provide specific reasons for any such finding. The audiologist should also discuss the significance of any post-service audiological testing data and comment on the impact of any post-service noise exposure on the Veteran's current hearing loss or tinnitus. Regardless of whether the audiologist's opinion as to any question is favorable or negative, the audiologist must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder or to known medical principles relied upon in forming his opinion. The audiologist should set forth the medical reasons to accept or reject the Veteran's theory that this current hearing loss and tinnitus are attributable to his in-service noise exposure. If the audiologist determines that an opinion cannot be provided without resorting to speculation, the audiologist should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the audiologist should be undertaken so that a definite opinion can be obtained.) 2. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in this request. If any report is insufficient, it must be returned to the audiologist for necessary corrective action, as appropriate. 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues of entitlement to service connection for hearing loss and tinnitus. If any benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs