Citation Nr: 1323295 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-07 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disability, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder, other than PTSD. 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967, including service in Vietnam with an artillery unit. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2012, the Board remanded the issues of entitlement to service connection for PTSD and service connection for an acquired psychiatric disorder other than PTSD, for additional development. In January 2013, the Board requested a medical opinion from a specialist with the Veterans Health Administration (VHA opinion). As noted in the March 2012 Board remand, the Veteran's representative raised a claim for entitlement to service connection for tinnitus in an August 2011 written argument. There is no indication that this claim has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, this matter is again referred to the AOJ for appropriate action. The issue of entitlement to service connection for a bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. Service connection for a psychiatric disorder other than PTSD, characterized as a nervous condition, was denied in a May 1985 Board decision. 2. In a September 1994 rating decision, the RO denied service connection for nervousness. The Veteran did not appeal this rating decision. 3. Evidence added to the record since the September 1994 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder other than PTSD. 4. Competent medical evidence indicates that a depressive and/or mood disorder is related to the Veteran's military service. 5. Competent medical evidence shows that the Veteran does not have PTSD. CONCLUSIONS OF LAW 1. New and material evidence has been received in order to reopen the claim for service connection for a psychiatric disorder other than PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for a depressive and/or mood disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this decision, the Board is reopening the claim of entitlement to service connection for an acquired psychiatric disorder and granting the claim on the merits. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary with respect to this issue. With respect to the claim of entitlement to service connection for PTSD, a letter dated in October 2008 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection for PTSD, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, and VA treatment records and examination reports. The RO also attempted to obtain Social Security Administration (SSA) records identified by the Veteran, but was unsuccessful. In April 2012, the RO issued a memorandum as to a formal finding of unavailability of these records. Additionally, the prior August 2012 remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining additional VA treatment records and scheduling the Veteran for an appropriate VA examination concerning his claim. In response, the RO obtained current VA treatment records through August 2012, which have been associated with the Veteran's virtual claims file. The Veteran was also provided a VA psychiatric examination in March 2012. There has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway; Dingess; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Claim to Reopen In a July 1981 rating decision, the RO denied service connection for a nervous condition on the basis that the evidence did not show a psychosis or neurosis was incurred as a result of service. The Veteran appealed this claim to the Board. In a decision issued in May 1985, the Board denied service connection for a psychiatric disorder. A Board decision is considered final when issued. 38 U.S.C.A. §§ 7103, 7104 (a); 38 C.F.R. § 20.1100 . In September 1994, the RO denied the Veteran's claim of entitlement to service connection for nervousness, this time predicated upon presumptive service connection as a result of the Agent Orange Act of 1991. The Veteran was notified of this decision, but did not appeal. This September 1994 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the September 1994 rating decision, new evidence has been associated with the claims file. Of note, VA treatment records dated through August 2012 show treatment for psychiatric disorders. The Veteran submitted a lay statement from his wife in support of his contention that he has a psychiatric disorder attributable to his military service. A March 2012 VA psychiatric examination report was also added to the record. Finally, a VHA medical opinion obtained in February 2013 indicates that the Veteran's current depressive and/or mood disorders are related service. The new evidence relates to a previously unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Therefore, the new evidence is also material. As new and material evidence has been received, reopening of the claim for service connection for a psychiatric disorder other than PTSD is warranted. III. Service Connection Claims The Veteran asserts he has a psychiatric disorder as a result of the traumatic events that occurred while he was in Vietnam during the Vietnam War. He also claims that he suffers from PTSD as a result of his experiences in Vietnam. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD, in particular, requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). However, as discussed below, since the Veteran does not have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), any further discussion of these provisions is unnecessary. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Service treatment records show no indication of psychiatric problems in service, including PTSD. The Veteran's service personnel records show that he served in Vietnam as a cannoneer in an artillery unit. In response to a request from the RO, the U.S. Armed Services Center for Unit Records Research (CURR), now known as the Joint Services Records Research Center (JSRRC), confirmed that the Veteran's artillery unit was rocked by explosions of incoming mortar rounds in December 1966. The Veteran has also stated that his in-service stressors including experiencing the death of a friend killed in Vietnam. Post-service medical records show the Veteran was treated for psychiatric symptomatology beginning in 1981. He was hospitalized in 1981 for complaints that included anxiety, restlessness, and insomnia. The discharge diagnosis was hysterical neurosis, conversion type. At a March 2009 VA examination the Veteran asserted that his psychiatric disorder was due to exposure to stressors in service. He reported that during service he had been exposed to combat or a war zone and to the sudden, unexpected death of someone close. The examiner provided a diagnosis of schizophrenia, chronic undifferentiated by history, and opined that while the Veteran had been exposed to stressors, he did not complain or have a cluster of symptoms that could be attributed to PTSD. In March 2012, the Board remanded the appeal for the Veteran to undergo a new VA examination. At a VA examination that same month, a VA examiner determined that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD. Instead, the examiner provided a diagnosis of schizophrenia. After a review of the claims file, including consideration of the March 2009 VA examination report, the examiner stated that the Veteran's neuropsychiatric condition is not caused by or a result of his military service; the Veteran does not have a diagnosis of PTSD; and the Veteran's neuropsychiatric and psychotic conditions did not have onset during service or within one year of his discharge from active duty. No rationale was provided for these opinions. VA treatment records dated through August 2012 show that the Veteran sought treatment for complaints of psychiatric-related symptoms including nightmares of death, and loss of appetite, concentration, energy and motivation. He also reported that he suffered flashbacks of Vietnam and of seeing his friend killed. He was anxious and at times had thoughts of hurting himself by hanging. Additionally, the VA treatment records contain problem lists that include findings of anxiety state, not otherwise specified; residual schizophrenia, unspecified; and depression, not otherwise specified. These records, however, do not provide a diagnosis of PTSD at any point during the pendency of this appeal. These records do not include medical opinions linking any specific psychiatric disorder to the Veteran's military experiences. In January 2013, the Board requested a medical opinion from a VHA specialist. The requested opinion was obtained in February 2013. After a thorough review of the claims file, the specialist concluded that there is no documented evidence showing any psychiatric symptoms, diagnoses, or disabilities that existed prior to service or within one year of separation. The specialist added that the first evidence of the existence of any psychiatric diagnoses or symptoms was not until the Veteran's 1981 hospitalization. The specialist noted that since service, the Veteran has received numerous diagnoses of psychiatric disorders, including schizophrenia (both undifferentiated type, and residual type), schizoaffective disorder, dysthymia, anxiety, and anxiety disorder with depression. He indicated that the symptoms associated with these disorders could have been erroneously determined to constitute separate diagnoses or actual coexisting diagnoses, or be related to symptoms of PTSD. However, it is significant that the Veteran has never been diagnosed with PTSD, despite the fact there are references to symptoms of PTSD. The specialist further explained that patients can have multiple symptoms of PTSD, but not enough symptoms to actually meet the full critieria for a diagnosis of PTSD as described in the DSM-IV. The specialist opined that even though the Veteran does not meet the criteria for a diagnosis of PTSD, it is as likely as not that his symptoms of PTSD, alcohol abuse, a depressive and/ or mood disorder are related to or a result of his experiences in Vietnam during active military duty. PTSD With respect to the Veteran's claim for service connection for PTSD, there is no competent evidence showing a diagnosis of PTSD in service. Further, the competent medical evidence of record- specifically the March 2009 and the March 2012 VA examination reports and the February 2013 VHA expert medical opinion- indicates that the Veteran does not currently meet the criteria for a diagnosis of PTSD. The VHA expert supported his medical opinion with a detailed discussion of the Veteran's service and post-service history, a discussion of the medical principles involved in reaching his opinion, and a thorough and fully-explained clinical rationale. For this reason, the opinion is highly probative. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent medical evidence to the contrary and the Veteran is not competent to diagnose PTSD. Under certain circumstances, the Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). However, in light of the specific requirements both in VA law and under the DSM-IV for rendering a diagnosis of PTSD, the Board finds that PTSD is not a simple medical condition. Further while the Veteran is competent to describe symptoms of emotional and psychological distress, a diagnosis of PTSD is not a condition under case law that has been found to be capable of lay observation. Thus, a determination as to the presence or diagnosis of PTSD is 'medical in nature', that is, not capable of lay observation, and competent medical evidence is needed to render such a diagnosis. As there is no competent medical evidence indicating that the Veteran has a current diagnosis of PTSD, service connection for PTSD is not warranted. Psychiatric disorder, other than PTSD With respect to the claim for service connection for a psychiatric disorder other than PTSD, there is competent medical evidence that indicates the Veteran's current depressive and/or mood disorder is related to his military experiences, particularly his service in Vietnam. The VHA specialist stated in his February 2013 opinion that it is as likely as not that the Veteran's depressive and/or mood disorder are related to or a result of his Vietnam experiences. There is no competent medical evidence to the contrary. The Board finds that the Veteran's statements concerning his experiences in Vietnam, including experiencing the death of a friend, are competent, credible, and consistent with the circumstances and hardships of his service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) and (f)(2) (West 2002). Further, JSRRC has confirmed that the Veteran's artillery unit was rocked by explosions of incoming mortar rounds in December 1966. As there is competent and probative evidence of a causal link between the Veteran's depressive and/or mood disorder and the circumstances of his military service, service connection for a depressive and/or mood disorder is warranted. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Finally, the Board finds that service connection is not warranted for any psychiatric disability other than a depressive and/or mood disorder, to specifically include PTSD. Although the record reflects diagnoses of other psychiatric disorders, there is no competent and probative medical evidence which indicates that any of these disorders had onset in service or within a year thereof, or are causally related to service. The VHA expert medical opinion, which the Board finds competent and persuasive for reasons previously discussed, indicates that only the depressive and/or mood disorder is related to service. For this reason, service connection for a psychiatric disability other than a depressive and/or mood disorder, to specifically include PTSD, is not warranted. ORDER New and material evidence has been presented to reopen claim of service connection for psychiatric disability other than PTSD; to this extent, the appeal is granted. Service connection for a depressive and/or mood disorder is granted. Service connection for PTSD, and a psychiatric disorder other than depressive and mood disorder, is denied. REMAND Also before the Board is the Veteran's claim of service connection for a bilateral hearing loss disability. In March 2012, the Veteran was provided a VA audio examination to determine whether his hearing loss is attributable to his military service. A VA examiner opined that the Veteran's bilateral hearing loss is not the result of his military service. The primary basis for this unfavorable opinion was that the Veteran's hearing loss was not shown in service, within one year of separation, or shortly after service. The rationale offered for the opinion is inadequate. The rationale does not reflect consideration of the Veteran's lay testimony of having sustained acoustic trauma in service from artillery noise; shows that the June 1967 separation examination audiometric findings were not converted from ASA results to ISO (ANSI) units; and includes speculative language (i.e. hearing loss could be the result of the natural aging process, post-service noise exposure, or a combination of both). Therefore, an addendum is necessary. Additionally, VA treatment records dated after August 2012 should be associated with the claims folders, either physically or electronically. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional sources of VA or private treatment received for his hearing loss. Obtain all identified records. Notify the Veteran of inability to obtain any identified records. 2. Return the claims file to the examiner who conducted the March 2012 VA examination for an addendum, if he or she is available. The examiner is to state whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to, or had its onset in service. A clear rationale for this opinion is required, as is a discussion of the pertinent facts and medical principles involved. The opinion must reflect consideration of any statements provided by the Veteran regarding the onset of diminished hearing acuity and; the circumstances of the Veteran's military service, to specifically include noise exposure from weapons fire and his duties associated with an MOS of cannoneer in an artillery unit while in Vietnam. If the requested opinion cannot be provided without resort to speculation, the examiner must so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative and give them an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs