Citation Nr: 1324319 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 12-03 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from December 1952 to September 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence does not show that the Veteran engaged in combat or experienced a stressor during active duty. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a February 2010 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the only service treatment record in the claims file is the report of a September 1954 separation medical examination. An April 2010 VA memorandum stated that VA had determined that the Veteran's service treatment records and official military personnel file were unavailable, all procedures to obtain them had been correctly followed, all efforts to obtain the records had been exhausted, further efforts were futile, and, based on these facts, the records were unavailable. The memorandum listed the attempts made to obtain the records. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The claims file also contains VA and private medical records, and an October 2011 VA examination report. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In February 2010 correspondence, VA asked the Veteran to complete and return a stressor questionnaire. However, the Veteran failed to do so. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. 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." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A VA examination was conducted in October 2011. To that end, 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). The Board finds that the VA examination conducted in this case is more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for any opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the psychiatric issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In particular, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor(s) occurred; and (3) medical evidence establishing a link between the current diagnosis and the stressor(s) in service. 38 C.F.R. § 3.304(f). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. However, these amendments pertain to claimed stressors that are related to a veteran's fear of hostile military or terrorist activity. Thus, they are not relevant to the Veteran's claim. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD. In so finding, the Board observes that there is no evidence that the Veteran was in combat or that he experienced a stressful event during service. The record before the Board includes various Axis I diagnoses, including PTSD. VA outpatient treatment reports dated in 2009 and 2010 provide Axis I diagnoses of bereavement, PTSD, dementia, dementia NOS, depression NOS, depressive disorder NOS, and dementia of the Alzheimer's type. The record before the Board also includes evidence that the Veteran does not have PTSD. The report of an October 2011 VA psychiatric examination provides that, based on that examination, the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. The Veteran's sole Axis I diagnosis was dementia of the Alzheimer's type, with behavioral disturbance. Even when a claimant seeking service connection for PTSD has an unequivocal diagnosis of PTSD, service connection for PTSD requires a confirmed military service stressor, unless the claimed stressor is related to combat and the evidence establishes that the Veteran engaged in combat with the enemy. In this case, the Veteran has not identified any active duty stressor, whether or not related to combat. The Veteran's claim, notice of disagreement and substantive appeal fail to identify any active duty stressor. At most, the Veteran's substantive appeal asserts that while the death of the Veteran's son's might have been the trigger for PTSD, in essence "his time in Korea" contributed to his PTSD. The report of the October 2011 VA examination provides that when asked if anything "terrible" or "traumatic" happened in Korea, the Veteran stated "not really." VA treatment reports indicate that the Veteran underwent a stressor many years after active duty. An April 2010 VA mental health physician's note provides that the Veteran's stressor was the loss of a son in January 2008. The October 2011 VA examination report provides that the Veteran's stressor was finding his deceased son. The diagnoses of PTSD discussed above do not corroborate that any stressor occurred during active duty. The Board is aware that an October 2009 VA outpatient treatment report provides that the Veteran was a combat Veteran and "may have PTSD." The report later states that certain current symptoms "may be related to PTSD from combat exacerbated by finding his son (sic) body and dementia." A January 2012 rating decision that granted service connection for varicose veins of the right leg noted that another serviceman stated that he witnessed the Veteran receive a right leg injury while under enemy fire in Korea. However, the language in the October 2009 VA outpatient treatment report is simply too speculative to support the Veteran's claim. VA regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Moreover, as noted above, the Veteran himself denied any stressor during Korea and the remainder of the medical evidence identifies a post-service event as the Veteran's stressor. The Board acknowledges that the Veteran has Axis I diagnoses other than PTSD. The Board also acknowledges that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the competent medical evidence does not show, and the Veteran himself does not contend, that any Axis I diagnosis other than PTSD is related to the Veteran's active duty. In the absence of a showing of combat with the enemy or evidence of a verifiable stressor, the Board concludes that the Veteran has failed to satisfy the criteria for service connection for PTSD. Service connection for PTSD cannot be granted without verification of an active duty stressor, regardless of any current diagnosis of PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and service connection for PTSD must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for PTSD is denied. REMAND A preliminary review of the record indicates that the claims for service connection for bilateral hearing loss and tinnitus require additional development. The report of a June 2010 VA audio examination provides that VA conceded inservice noise exposure, the Veteran's separation whispered voice test showed hearing within normal limits, and current audiogram results showed bilateral hearing loss for VA purposes. The report provides the opinion that the Veteran's bilateral hearing loss was less likely as not caused by or a result of military service. As a rationale, the examiner pointed out three times that the Veteran had normal hearing at separation. In a VA Training Letter regarding the adjudication of claims for hearing loss and tinnitus, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). The Director also noted that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02) (March 18, 2010). 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). Based on the foregoing, the Board finds that another medical opinion, that does not rely on the results of the Veteran's separation whispered voice test, is necessary to determine the nature and etiology of the Veteran's bilateral hearing loss. The June 2010 VA examination report also provides that there was no current complaint of tinnitus, and that the Veteran denied tinnitus now and in the past. The report provides the opinion that the Veteran's tinnitus was less likely as not caused by or a result of military service. The Board is aware that the Veteran denied tinnitus during a January 2007 VA outpatient appointment. However, at that time the Veteran also denied hearing loss, which he has been shown to have. Further, by submitting the December 2009 claim for service connection for tinnitus the Veteran asserted that he had tinnitus. In the substantive appeal, the Veteran's representative stated that the Veteran was currently suffering from dementia and had been diagnosed with tinnitus in the past. Based on the foregoing, the Board finds that another medical opinion, that recognizes the Veteran's reported tinnitus, is necessary to determine the nature and etiology of the Veteran's tinnitus. See Barr, supra (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, Training Letter 10-02 also provides that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Forward the Veteran's claims folder to the examiner who offered the June 2010 VA opinion (or a suitable substitute if this individual is unavailable) for an addendum opinion as to the nature and etiology of any bilateral hearing loss and tinnitus that may be present. The examiner is requested to review the entire record, including the June 2010 VA examination report. Following a review of the relevant medical evidence in the claims file, the examiner is asked to opine: (1) whether it is at least as likely as not (50 percent or more likelihood) that any current bilateral hearing loss is causally related to the Veteran's active duty noise exposure; (2) whether it is at least as likely as not (50 percent or more likelihood) that any current tinnitus is causally related to the Veteran's active duty noise exposure; and (3) whether it is at least as likely as not (50 percent or more likelihood) that any current tinnitus was caused or aggravated by his bilateral hearing loss. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner is requested to provide a rationale for any opinion expressed. 2. Then, readjudicate the Veteran's claims. If either benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs