Citation Nr: 1324175 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-37 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial compensable evaluation for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David Huffman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 2009. In April 2011, the Veteran and his wife testified at a videoconference hearing held before the undersigned. The Veteran has also been diagnosed as having depression or depressive disorder; as a result, the original issue of service connection for PTSD has been expanded to include service connection for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes other diagnosed mental conditions). 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 In May 2011, the Veteran's representative asked that "medical records from Lexington VAMC dated 8/6/10-3/21/11 consisting of 41 pages" be obtained. As the records were not further identified, all records encompassing that time period must be obtained. In addition, records dated after that date to the present should be obtained as well. The Veteran also contends that his hearing loss has worsened since the May 2009 VA examination, pointing out that he was prescribed hearing aids in 2010. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). This examination report must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Moreover, because service connection for right ear hearing loss was denied because a hearing loss disability under 38 C.F.R. § 3.385 was not shown, the examination must include both ears, as well as an opinion as to etiology, should right ear hearing loss be found to be present. The examination should also address whether the Veteran has tinnitus, and, if so, whether such is related to in-service noise exposure. In this regard, although the May 2009 VA examination noted that there was no current complaint of tinnitus, the Veteran now contends that he has had recurrent tinnitus since service. With respect to the claim for an acquired psychiatric disability, including PTSD, the evidence currently on file includes reports of a negative VA PTSD screening test in November 2007, a private evaluation obtained in March 2008, a VA examination in July 2009, and another private evaluation in August 2011. Although the VA examination contains more detailed findings concerning the Veteran's specific history and mental status, the more recent private evaluation indicates the possibility additional symptoms, as well as symptoms of significantly greater severity than shown on either prior examination. Unfortunately, this examination report also included significant differences between what was noted in the complaints and diagnosis, versus what was noted on the mental status examination, which are difficult to reconcile. At one point, it was noted that "he reports psychomotor agitation evidenced by motor retardation and sluggishness," which appears internally inconsistent. Moreover, the most recent examination raises the question of whether the Veteran claims a stressor related to fear of hostile military or terrorist activity; for such to constitute an adequate stressor, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3) (2012). " Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dated from August 2010 to date from the Lexington, Kentucky, VAMC, to include all audiology clinic records, as well as records showing treatment and/or evaluations for psychiatric/mental health complaints. The reports of any relevant studies or tests must be included as well. 2. Thereafter, schedule the Veteran for a VA audiology examination to determine his current hearing status, to include all indicated audiometric studies. The entire claims folder must be made available to the examiner in conjunction with the examination. * Specifically, concerning the right ear, it should be determined whether he currently has a hearing loss disability, as defined in 38 C.F.R. § 3.385, and, if so, whether it is at least as likely as not (50 percent or greater probability) related to service, in particular, in-service noise exposure. A rationale for the opinion must be provided. * Concerning the left ear, in addition to the audiometric findings, the examiner should describe the effect of the Veteran's hearing loss on his occupational functioning and daily activities. * For tinnitus, the examiner should expressly state whether or not the Veteran has recurrent tinnitus, and, if so, whether such is at least as likely as not related to in-service noise exposure. A rationale for the opinion must be provided. 3. Schedule the Veteran for a VA psychiatric examination by a psychiatrist or psychologist, to determine whether he has a current acquired psychiatric disability, to include PTSD, which at least as likely as not (50 percent or greater probability) had its onset during or is otherwise related to service. The entire claims folder must be made available to the examiner. A rationale for all opinions must be provided. If the examiner finds PTSD to be present, the stressor(s) upon which the diagnosis is based should be identified, and the diagnosis must conform to DSM-IV. If the stressor includes fear of hostile military or terrorist activity, the examiner should opine as to whether the reported stressor is adequate to support a diagnosis of PTSD, under the new legal definition. * For the examiner's convenience, the definition follows: "Fear of hostile military or terrorist activity" means 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. § 3.104(f) (2012). 4. After completion of the above and any additional development deemed necessary, the RO should review the claims on appeal. If any claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an 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). _________________________________________________ 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).