Citation Nr: 1322331 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-20 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: M. Scott Kidd, Attorney At Law WITNESSES AT HEARING ON APPEAL Veteran and A.S. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from November 2006 to February 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned at a November 2010 Video Conference hearing. The hearing transcript is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran's claim for service connection for depression and anxiety is deemed to include any psychiatric disability. During his November 2010 Video Conference hearing, the Veteran testified that he had experienced problems hearing since service as a result of noise exposure, and that he was basically deaf in his right ear. The issue of entitlement to service connection for hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under the VCAA, VA is obliged to provide an examination in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that he suffers from current psychiatric symptoms, including depression and anxiety, related to his active military service. He has specifically reported that he found basic training to be stressful. Service treatment records show that in August 2007, the Veteran was diagnosed with alcohol dependence. In December 2007, he was seen for suicidal thoughts, and was also noted to be depressed, angry, frustrated, agitated, hostile, and paranoid. He was diagnosed at that time with ethanol intoxication, depression and suicidal ideation. Service treatment records also show that he was prescribed Trazadone and Wellbutrin. The Veteran was afforded a VA examination in May 2008, in response to his claim. The examiner noted that the Veteran was administered the Beck Depression Inventory and the MMPI-2, and the results from each test revealed that the Veteran appeared to be over-endorsing and exaggerating his symptoms. According to the examiner, the Veteran endorsed many bizarre symptoms which he failed to mention or have any history of reporting in the past. He concluded that the Veteran's test results did not appear to be valid. He gave an Axis I diagnosis of alcohol dependence, and Axis IV diagnoses of sleep disturbance, nightmares, anxiety, and symptoms of depression. The examiner noted further that that the Veteran was clearly in a state of alcohol dependence, as he reported symptoms which were consistent with alcoholic withdrawal when he did not drink regularly. At that time, the Veteran was goal directed, not suicidal, and maintaining a relationship with a young woman with whom he lived and making plans for the future. He did not express any paranoid ideation when asked about his treatment in the service, but he endorsed considerable paranoid ideation on the MMPI-2. He did not appear anxious or depressed, made good eye contact and smiled, and there was no evidence of any psychomotor retardation. He also noted that the Veteran completed both psychological tests in a very short period of time, which would argue against an inability to concentrate. The examiner opined that the only mental health diagnosis that could be made at that time was alcohol dependence, which could account for both his mood disturbance and his reported sleep disturbance, and that it was virtually impossible to determine if the Veteran had any underlying depression or anxiety so long as he was drinking heavily. VA outpatient treatment records dated from June 2008 to July 2009 show that the Veteran has been diagnosed with substance abuse and alcohol dependence, as well as a personality disorder/mental retardation, a mood disorder, and bipolar disorder. He was also noted to have continued suicidal ideation. Furthermore, during his November 2010 Video Conference hearing, the Veteran reported symptoms of anxiety, with panic attacks, depression and social isolation, which he claimed started in and as a result of his military service. The medical evidence of record contains competent evidence of a current psychiatric disability. The Veteran's reports of in-service psychiatric symptoms and a continuity of symptomatology provide evidence that a current psychiatric disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The May 2008 VA examiner opined that the Veteran's only mental health disorder was alcohol dependence, and that he could not determine whether there was any underlying depression or anxiety so long as the Veteran was drinking heavily. However, records of treatment received after the VA examination show that the Veteran was diagnosed with other current psychiatric disabilities. There is no opinion of record addressing whether any of the diagnosed disabilities, including a mood disorder and bipolar disorder, are related to the Veteran's active military service. Therefore, the Board believes that the Veteran should be afforded another VA psychiatric examination to determine the nature and etiology of all currently present acquired psychiatric disorders. 38 U.S.C.A. § 5103A (d) (West 2002). The Veteran contends that his currently diagnosed right knee disability is related to his active military service. In an October 2006 Report of Medical History, the Veteran reported that he received stitches in the right knee after falling on a hub cap at the age of 16. However, the Report of Medical Examination on that date shows that evaluation of his lower extremities at that time was normal. Service treatment records show that in December 2007, the Veteran was treated for right knee pain. The Veteran was afforded a VA examination in response to his claim in May 2008. He reported initially injuring his right knee in 2008, during physical training exercises, while stationed at Fort Campbell in Kentucky. He reported further that sought medical treatment and was prescribed Naprosyn for pain and inflammation. The Veteran claims that his right knee pain, stiffness and occasional swelling have persisted to this day. The examiner noted that X-rays showed mild degenerative changes and mild narrowing of the medial joint compartment, and diagnosed internal derangement of the right knee. He did not offer an opinion as to the etiology of the diagnosed right knee disability. The Veteran's right knee disability is manifested by symptoms that the Veteran is competent to report. He is competent to report the specifics of his injuries, and his reports are supported by the findings that he has a current right knee disability. The Veteran's reports of an in-service right knee injury and a continuity of symptomatology provide evidence that a current right knee disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, contemporaneous evidence of an ongoing right knee disability in the years following service is not of record. Accordingly, the Board finds that in light of the Veteran's contentions and the evidence of a current disability that may be related to active military service, another VA examination and opinion are needed to determine whether the Veteran's current right knee disability is related to a disease or injury during active service. 38 U.S.C.A. § 5103A (d) (West 2002). The Veteran also contends that he has current tinnitus, related to noise exposure in service. He reported during his November 2010 Video Conference hearing that during service, he was assigned to an air defense artillery unit, where he was exposed to noise from firing of rifles and mortars. He also reported that he was exposed to noise as a truck driver in service. Service treatment records are negative for any evidence of tinnitus or hearing loss, and a November 2006 audiogram was negative for any evidence of hearing loss. However, the Veteran's Form DD-214 shows that his military occupational specialty (MOS) in service was Motor Transport Operator. Therefore, the Board accepts the Veteran's reports of noise exposure in service. The Veteran was afforded a VA examination in May 2008 in response to his claim. He reiterated his contentions of noise exposure in service. The examiner noted the Veteran's reports of ringing in the ears bilaterally and sometimes the left ear only, which started in 2006, and diagnosed the Veteran with normal hearing bilaterally. He opined that it was less likely as not that the claimed tinnitus was a result of any activity during military service. His rationale was that there was no mention of tinnitus in the service treatment records, and there was no change in the Veteran's hearing from his 2006 test results. The Board finds that the May 2008 examiner's opinion is inadequate for two reasons. First of all, the Board notes that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection is possible for a disability first identified after service. 38 C.F.R. § 3.303(d). The May 2008 examiner did not provide an opinion as to whether the tinnitus identified after service was related to a disease or injury in service. There was also no consideration given to the Veteran's competent history of in-service noise exposure, or his lay history of experiencing tinnitus since service. The Board also finds the opinion is adequate because it was based partly on the examiner's finding that there was no change in the Veteran's hearing from his 2006 in-service test results. The examiner did not provide a reasoned medical explanation connecting his supporting data with his conclusion. In this regard, the Board finds that the fact that the Veteran's hearing had not changed since 2006 does not necessarily indicate that his current complaints of tinnitus are not related to noise exposure in service. Based on the foregoing, the Board finds that the May 2008 VA examiner's opinion does not contain enough information upon which to base a decision. VA regulations provide that, where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's bilateral tinnitus is necessary. 38 U.S.C.A. § 5103A (d) (West 2002). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Lastly, the Board notes that neither the claims file nor Virtual VA contain any treatment records dated after July 2009. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disorders, right knee disability and tinnitus. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA outpatient treatment records dated from July 2009 to the present. 2. Afford the Veteran a VA examination to determine the etiology of all currently diagnosed psychiatric disorders. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current psychiatric disorder originated while the Veteran was serving on active duty or is otherwise etiologically related to service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Afford the Veteran a VA examination to determine the etiology of any current right knee disability. The examiner should review the claims folder and note such review in the examination report or an addendum. Any indicated studies should be performed, and the examiner should report all orthopedic diagnoses pertinent to the right knee. The examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current right knee disability is related, in whole or in part, to a disease or injury in service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Afford the Veteran a VA audiology examination to determine the etiology of any current tinnitus. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current tinnitus is the result of noise exposure or other injury or disease in active service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries, including noise exposure, as well as symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Re-adjudicate the Veteran's claims for service connection based on the new evidence of record. If any benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).