Citation Nr: 1322486 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 06-09 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, or anxiety. 2. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from March 1978 to August 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.| In January 2007, the Veteran testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In June 2011, the Board remanded this matter for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND With regard to the claim for service connection for a psychiatric disability, the Veteran asserts that he had a pre-existing psychiatric disorder that was aggravated by service or in the alternative, that he has a current psychiatric disability related to service. The Veteran contends that during basic training he woke up to find other service members standing around his bed laughing while they were half naked in white towels with flashlights. He stated that there was something on his face and, although he is not sure, he believes that they may have ejaculated on him. The Veteran also reported an incident where he woke up to find that someone had set a fire in his dorm room and that he was very frightened because the room was filled with smoke and he thought his roommate was dead. Lastly, the Veteran has reported an incident when he was at the officer's club at Laurel Air Force Base and went into the bathroom to find a man who had been stabbed. He stated that a large man with a knife exited the bathroom and told him that the incident did not concern him. The Veteran was afforded a VA examination in February 2012. The VA examiner diagnosed PTSD and major depressive disorder with psychotic features. The examiner then stated that the evidence of record did not support a conclusion that PTSD or major depression preexisted the Veteran's entry into service, as records indicated that he had been functioning adequately prior to entering service. Instead, the examiner opined that the Veteran's current symptoms (which overlapped and could not be differentiated between PTSD and major depression) were a result of the Veteran's military trauma. However, it does not appear that the examiner considered the medical evidence of record. The examiner stated that records indicated that the Veteran had been functioning adequately prior to entering service. However, the examiner did not address the evidence that shows the Veteran was diagnosed with anxiety reaction and other physical disorders after being hospitalized for four days in March 1971. That evidence also shows that, from 1974 to 1976, the Veteran was treated for nervousness and mild depression, as shown in a January 1978 Report of Medical Examination/Treatment. That evidence seems to weigh against a finding that the Veteran was functioning adequately prior to service. In light of the inadequate February 2012 VA medical opinion, the Board then sought a VHA opinion. In October 2012, after a review of the claims file, a VA psychiatrist concluded that the Veteran was diagnosed with anxiety reaction in 1971 and was seen several times from 1971 to 1976 for nervousness and mild depression. Also, noting that the Veteran was prescribed Tofranil during that time. The physician opined that in 1978, the Veteran had personal problems that affected his ability to complete a course as he failed three block tests. Due to his lack of effort and marginal performance on tests, he was given an Honorable Discharge. In January 2013, the Board sought a clarifying opinion from the VA psychiatrist. In a February 2013 opinion letter, the prior VA psychiatrist stated, in addition to the above, that there was evidence that shows the Veteran was diagnosed with depression and anxiety prior to the Veteran's entry into active service. There was no evidence that shows that this pre-existing psychiatric illness was aggravated as a result of his active service. The Veteran was diagnosed with a psychiatric illness prior to active service. The Veteran's psychiatric illness was not related to his active service, and it was not aggravated by active service. Unfortunately, the Board is again provided with an inadequate VA medical opinion. Further, there are now conflicting opinions of record as to whether the Veteran had a pre-existing psychiatric disorder. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Hence, the Board finds that an additional remand is warranted for the Veteran to attend an additional VA examination and obtain an opinion as to the etiology of any diagnosed acquired psychiatric disability that is based on consideration of all the evidence of record, including findings during the examination. The opinion should reconcile all of the opinions of record, consider all of the Veteran's contentions, and provides an adequate rationale for all opinions expressed. With regard to the claim for an initial compensable rating for left ear hearing loss, the Veteran submitted a statement in January 2013 that he disagreed with the rating decision that assigned a 0 percent rating for left ear hearing loss. The Board notes that a January 2012 rating decision granted service connection and assigned an initial 0 percent rating for left ear hearing loss. The Veteran's January 2013 statement is a timely notice of disagreement with that rating decision. However, it does not appear that the RO has yet issued a statement of the case addressing this issue. Therefore, the appropriate Board action is to remand that issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case which addresses the issue of entitlement to an initial compensable rating for left ear hearing loss. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review. 2. Schedule the Veteran for a VA examination, by a psychiatrist who has not previously examined him, to determine the etiology of any diagnosed psychiatric disability. The examiner must review the claims file and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinion expressed should be provided. In offering each opinion, the examiner must specifically acknowledge and consider the competent lay evidence of the Veteran as to his psychiatric symptoms. In addition, the examiner is requested to reconcile the medical opinions of record. The examiner should provide the following: (a) The psychiatrist should opine whether the Veteran had any psychiatric disability that clearly and unmistakably (undebatably) existed prior to his entry into service. (b) If the examiner determines that the Veteran had a psychiatric disability that clearly and unmistakably existed prior to his entry into service, the examiner should state whether there is clear and unmistakable (undebatably) evidence that the preexisting acquired psychiatric disability did not increase in severity during service. (c) If the Veteran's acquired psychiatric disability underwent an increase in disability during service, was the increase in disability beyond the natural progress of the disease? (d) If any diagnosed acquired psychiatric disability did not clearly and unmistakably exist prior to service, the examiner should opine whether it is at least as likely as not (50 percent probability or higher) that any diagnosed psychiatric disability had its onset during service, or is it related to any event of service, to include the events described by the Veteran in service. 3. Then, readjudicate the claim for service connection for an acquired psychiatric disability. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).