Citation Nr: 1326901 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-10 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 2001 to October 2003. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, (located in Decatur, Georgia) that denied service connection for carpal tunnel syndrome of the Veteran's bilateral wrists, tinnitus, hearing loss, and PTSD, and confirmed and continued its denial of service connection for low back strain and retropatellar pain syndrome of the Veteran's knees. Then, in a February 2007 rating decision, the RO granted service connection for bilateral retropatellar pain syndrome and L-5 spondylolysis. The RO's action represented a full grant of the benefits sought as to these matters. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date). In his March 2007 substantive appeal, the Veteran indicated that he only intended to continue his appeal as to the denial of his claims for service connection for PTSD, tinnitus, and hearing loss. In a December 2010 decision, the Board denied the Veteran's claim for service connection for hearing loss. At that time, the Board remanded his claims for service connection for PTSD and tinnitus to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. During the pendency of the Veteran's case, the United States Court of Appeals for Veterans Claims (court) held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (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). As such, the Board has recharacterized the claim on appeal to more accurately reflect the court's holding in Clemons. FINDINGS OF FACT 1. The evidence of record preponderates against a finding that tinnitus had its onset in or is otherwise related to the Veteran's active service. 2. Resolving all doubt in the Veteran's favor, PTSD had its onset during his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection PTSD have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in July 2005 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. A May 2007 letter provided notice as to how VA assigns an appropriate disability rating or effective date, curing any timing defect. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file not reveal any additional evidence regarding the claims for service connection for an acquired psychiatric disorder, claimed as PTSD, and tinnitus currently on appeal. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In December 2010, the Board remanded the Veteran's case to the RO for further development that included providing him with a requisite notice letter that included the new regulations to establish a claim for service connection for PTSD, scheduling him for a psychiatric examination, and obtaining an addendum opinion from the January 2007 VA audiology examiner or scheduling a new audiology examination if the examiner was unavailable. There has been substantial compliance with the Board's 2010 remand as the Veteran was provided with a notice letter that included the new regulations regarding establishing PTSD in December 2010. The VA examinations were scheduled in accordance with the Board's remand instructions, in January 2011, but the Veteran failed without explanation to report. There is no indication in the record that the letters notifying the Veteran of the scheduled January 2011 VA psychiatric and audiology examinations were not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The report from the VA medical facility notes that the Veteran failed to report for the scheduled examinations. The July 2012 supplemental statement of the case informed the Veteran of his failure to report (see pages 10-11) and there being no showing in the record of good cause for his failure to report. There is no record in the claims folder of a response from the Veteran. In short, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board finds that additional efforts to schedule an examination would be futile. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q) (2012). While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claims, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Therefore, remand for additional VA examinations is not warranted as to the claims for service connection for tinnitus and an acquired psychiatric disorder, claimed as PTSD. The Board has no legal recourse but to decide the Veteran's claims on basis of the existing record. 38 C.F.R. § 3.655. In sum, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria The Board has thoroughly reviewed the record in conjunction with this case, including the Veteran's service treatment records, VA and non-VA medical records and examination reports, dated from 2005 to 2007, and his written statements in support of his claims. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Certain chronic diseases, including psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric and audiologic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, as detailed below, the Veteran has indicated that he first noticed his tinnitus months after his separation from active duty, and there is no indication of any hearing problems in the service treatment records. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis - Tinnitus The Veteran seeks service connection for tinnitus that he reports is related to acoustic trauma in service and had its onset when he developed hearing loss in early 2004, three or four months after his discharge from active service. Upon review of the evidence of record, the Board finds that the evidence of record does not support his claim and that service connection is not warranted for tinnitus. Service treatment records do not discuss complaints of tinnitus. Post service, a January 2007 private psychiatric examination report indicates that the Veteran drove a Bradley Linebacker while in Iraq and Kuwait. His medical history was significant for decreased hearing after he was close to a gun going off. The Axis I diagnoses included decreased hearing due to gunfire. Also in January 2007, the Veteran underwent VA audiology examination. According to the examination report, the Veteran complained of progressive hearing loss since early 2004, three or four months after discharge. He also had bilateral, progressive, ringing subjective tinnitus that reportedly started at the same time as the hearing loss. The VA examiner noted that the etiology of the Veteran's tinnitus was "unclear in that no hearing loss is present and the tinnitus began months after separation from service." The Veteran gave a history of driving a Bradley vehicle for nearly two years, with a CVC (combat vehicle crewman's) helmet worn while driving. He had exposure to combat noise during the five months he spent in Iraq. As a civilian, the Veteran worked in marine construction for two months late in 2004, several months after his reported hearing loss and tinnitus began. The Veteran has contended that service connection should be granted for tinnitus. Although the evidence shows that the Veteran currently has tinnitus, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof. On the other hand, the record reflects that the first post service evidence of record of tinnitus is from 2007, more than four years after the Veteran's separation from service. In fact, in January 2007, a VA audiology examiner reported that the etiology of the Veteran's claimed tinnitus was unclear in that no hearing loss was present and the tinnitus began months after separation from service. In short, no medical opinion or other medical evidence relating the Veteran's tinnitus to service or any incident of service has been presented. As noted above, the Veteran failed to report for a VA audiology examination scheduled in January 2011, in conjunction with his claim. The Veteran has offered no explanation as to why he failed to appear for the scheduled examination. A letter dated on December 17, 2010 informed him that a request had been sent to the VA medical facility "nearest you" to schedule him for an examination, that he would be notified of the date and location of the examination, and that his claim would be rated on the evidence of record, or could be denied, if he failed to report for an examination. A letter dated on December 20, 2010 informed the Veteran that he was scheduled for a VA audiology examination on January 13, 2011 at 8:00 a.m. in the audiology clinic of the VA medical center in Augusta, Georgia, and advised him to contact the medical center by phone or in writing if he had any questions regarding the scheduled examination. Given the presumption of regularity of the mailing of VA examination scheduling notice and the fact that the Veteran has not contacted the RO with a reason for his failure to report, the Board finds that the Veteran failed to report to the scheduled January 2011 VA examination without good cause. See 38 C.F.R. § 3.655. There is not one medical opinion of record to support the Veteran's service connection claim. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. When a veteran fails without good cause to report for a VA examination requested by VA in conjunction with a claim, VA is not obliged to attempt to provide another. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). VA offered the Veteran an opportunity to have a VA examination to obtain a medical opinion regarding whether he had tinnitus incurred in or related to his military service. The Veteran, however, failed to appear for the scheduled VA examination. His failure to cooperate in attending the examination has left the record devoid of any competent opinion whether he has a tinnitus disorder that was incurred in or related to his active military service. 38 C.F.R. § 3.655(b). Given that there is no competent evidence that the claimed disorder is aggravated by a service connected disorder, given that the Veteran failed to report for the scheduled examination, and given that he has not provided good cause for his failure in this regard, his claim must be denied. While VA has a duty to assist the Veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the Veteran to appear for VA examinations. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). In sum, the Veteran was aware of the consequences of a failure to report for VA examination without good cause. He has not shown good cause for his failure to appear for the VA audiology examination scheduled in January 2011. The Board finds that the Veteran failed to report to the scheduled January 2011 VA examination without good cause. See 38 C.F.R. § 3.655(b). As such, his claim must be rated based upon the evidence of record. Id. In deciding whether good cause was shown for the Veteran's failure to report for the necessary examination, the Board has considered the doctrine of reasonable doubt, but the preponderance of the evidence is against a finding that there was good cause and reasonable doubt does not arise. The January 2007 VA audiology examiner noted that the Veteran said his tinnitus started at that same time as his hearing loss. The examiner opined that the etiology of the Veteran's claimed tinnitus was unclear in that no hearing loss was present and the tinnitus began months after separation from service. There is no competent medical evidence of record to support the Veteran's claim. In so finding, the Board has considered the Veteran's contention that a relationship exists between his current tinnitus disorder and military service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Veteran is competent to describe his observable symptoms, such as experiencing tinnitus. However, he is not competent to make a statement of causation that is a medical determination. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. This is particularly true in a case such as this where there is no indication of any hearing problems in the service treatment records. Moreover, as noted above, the Veteran reported at the January 2007 VA examination that he first noticed hearing loss and tinnitus three or four months after discharge. Therefore, the Board finds that competent medical evidence is necessary to resolve the etiology of the Veteran's tinnitus, and nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See 38 C.F.R. § 3.159(a)(1). The Board has considered the Veteran's statements as to his incurrence during service, in light of his service treatment records and post-service medical evidence. The Board finds that the objective medical evidence of record is most persuasive and of more probative value than the Veteran's assertions. The record fails to reflect that the Veteran was treated on even one occasion for tinnitus problems during military service. The post service records show that tinnitus was reported in 2007, nearly four years after his discharge from service. The gap of time between military service and the first post-service medical evidence of a tinnitus disorder is, in itself, significant, and weighs against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Even the Veteran's own contentions at the January 2007 VA examination are such that his tinnitus was first noted after service. The negative clinical and documentary evidence post service for approximately four years after his active service is more probative than the remote assertions of the Veteran. The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties. Savage v. Gober, 10 Vet. App. 488, 496 (1997). Further, while the January 2007 VA examiner reported that the Veteran's tinnitus began at the same time as his hearing loss, the examiner stated that the etiology of the tinnitus was unclear in that no hearing loss was present and the tinnitus began months after separation from service. In fact, not one clinician attributed the disorder to his military service. The Veteran's contentions are outweighed by the objective medical evidence that reflects that his tinnitus disorder was less likely as not related to his active military service. In sum, the Board is left with no documented complaints of tinnitus problems in service, no documented complaints or findings of a diagnosed tinnitus disorder after service until 2007, and not one medical opinion to support the Veteran's claim. Thus, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for tinnitus, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). IV. Analysis - Psychiatric Disorder (claimed as PTSD). The Veteran seeks service connection for an acquired psychiatric disorder, claimed as PTSD. He contends that he was involved in multiple firefights during his tour in Iraq that caused his psychiatric disorder. Upon review of the evidence of record, the Board finds that the evidence of record is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for PTSD. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. at 49. Prior to July 13, 2010, service connection for PTSD required: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009), effective prior to July 13, 2010. However, effective July 13, 2010, 38 C.F.R. § 3.304 (f) was amended to include a new paragraph (f)(3) that reads as follows, in pertinent part: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010). The provisions of this amendment apply to the Veteran's claim because, during the course of this appeal, the Veteran reported stressors associated with his service in Iraq including that he was exposed multiple firefights during his tour. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002 and Supp. 2012). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is also required. 38 C.F.R. § 3.304(f). See Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. at 138; Suozzi v. Brown, 10 Vet. App. 307 (1997). The Veteran reported stressors associated with his service in Iraq including exposure to multiple firefights. Service records, including his Certificate of Release or Discharge From Active Duty (DD Form 214), show that he served as a "LOS-F-H" (line of sight-forward heavy) crewmember in Operation Enduring/Iraqi Freedom from January to July 2003. His awards and decorations include a Presidential Unit Citation (Army), Army Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Army Service Ribbon, and Army Lapel Button. Thus, the evidence does show that he was exposed to hostile or terrorist activity. In a June 2009 memorandum, the RO found a lack of information to corroborate the Veteran's alleged stressful events in service. However, in a December 14, 2010 "PTSD Stressor Review Checklist", VA personnel indicated that the Veteran's stressor was related to fear of hostile military or terrorist activity and consistent with the places, types, and circumstances of his service. The Board agrees. The remaining question to be addressed is whether the Veteran has a confirmed diagnosis of PTSD, or another psychiatric disorder, that was incurred during active service. Service treatment records do not discuss complaints or diagnosis of, or treatment for, a psychiatric disorder. A September 2002 clinical record indicates that the Veteran's medical records were screened in conjunction with the Commander's Request for Mental Status Evaluation. It was noted that the service member was being considered for administrative action(s), pharmacotherapy, sniper school, SERE, Drill Sergeant School (DSS), Army Recruiter Course (ARC), and/or training. The results of the mental status evaluation are not reported. Post service, VA outpatient records, dated from February 2005 to January 2007, include a diagnosis of bipolar affective disorder. When initially seen in the VA outpatient clinic, in February 2005, the Veteran requested to see a psychiatrist and noted that he was in Iraq from January to July 2003 and discharged in October 2003. He reported a history of polysubstance abuse and said he did not want narcotic medication. A PTSD screen was positive and severe depression was noted. Objectively, the Veteran was alert and oriented and a mental health screen performed at the time was considered normal. In July 2005, VA medical records show that the Veteran requested a referral to see a psychiatrist for recurrent sleep problems related to dreams of service in Iraq. July 2006 VA mental health consult records from the VA Savannah Outpatient Clinic reflect that, on July 5th, the Veteran was evaluated by a clinic psychiatrist. The Veteran complained of severe mood swings that began while he was in service when he felt down and he felt irritable and isolated himself. During those times, he had a poor appetite and did little. He also had periods when his energy level was excessive. These episodes were more frequent than his depression. He reported some grandiosity during these excessive energy periods and his girlfriend often said he was crazy. He denied any delusional thinking or auditory hallucinations. The Veteran gave a history of driving a Bradley while in Iraq. He served in Kuwait in 2003, was one of the first units in Iraq, and was involved in multiple firefights during his Iraq tour. The Veteran saw multiple enemies killed and described the details with little emotion. He felt his life was in danger. Since his return, he had sleep difficulty and denied problems with nightmares. It was noted that his computerized list of medical problems included PTSD. The VA clinic psychiatrist concluded that the Veteran had symtoms consistent with a bipolar disorder and noted that the Veteran experienced some traumatic events in Iraq but did not appear to meet the criteria for PTSD. The Axis I diagnosis was bipolar affective disorder for which psychotropic medication was prescribed. According to a July 11, 2006 VA telephone note, the Veteran reported that, after he saw the VA psychiatrist the previous week, he decided to straighten up his life and stop using drugs. The previous evening, he became "very depressed-anxious" and left his house to get some marijuana. When he returned, his girlfriend confronted him and grabbed his bag. He "lost it-pulled everything out of the refrigerator onto the floor and threw things from the kitchen cabinet." He denied striking his girlfriend but believed she planned to leave him that day. A July 24, 2006 VA mental health medication management record indicates that the Veteran was seen for treatment of PTSD. His main concern was his sleep difficulty and nerves. New medication was prescribed. According to a January 2007 medical report, K.O'L., M.D., a private psychiatrist, and medical director for Emanuel Medical Center Behavioral Health Services, examined the Veteran for depression, anxiety, and PTSD at the request of his wife. The Veteran's wife believed that he was incorrectly or incompletely diagnosed by a VA psychiatrist whom he was seeing. The Veteran reported that, while in service, he was busted several times and discharged as an E-1. He served for over five months in Kuwait and Iraq where he drove a Bradley Linebacker. The Veteran felt he was "constantly" in danger n Kuwait and Iraq and feared he was going to die while there. As to PTSD symtoms, the Veteran admitted to feeling paranoid, and had panic attacks, increased heart rate, shortness of breath, felt something coming after him, and became sweaty and shaky. He complained of vivid flashbacks of combat-related events that happened during sleep. Dr. O'L. speculated that it was possible that they were hypnagogic or hypnopompic hallucinations. The Veteran said the flashbacks also occurred during the day. The Veteran's wife reported that he could not stand being in the dark or having anyone walk behind him. On one occasion, he wrestled her to the ground after she walked up behind him that scared her and precipitated the current evaluation. The Veteran's wife indicated that he experienced nightmares several times a week and, it was after a nightmare, that he grabbed her and pinned her to the ground. She had to repeatedly scream his name to get him to let her up as they were alone. The Veteran denied depression and anxiety. The Veteran's past psychiatric history was significant for seeing a VA psychiatrist in Savannah two or three times a week who diagnosed a bipolar disorder. It was noted that the Veteran was given a week of PTSD leave while in service. He was treated with Depakote and Trazadone to sleep. The Veteran also battled drug addiction and spent three months at Harbor House in Pensacola, Florida. He was clean for 18 months and did not use alcohol. The Veteran was married for four months and currently attended a two-year college studying business administration. Upon clinical evaluation, the Axis I diagnoses included PTSD/polysubstance dependence, in remission. Dr. O'L. believed that the Veteran was "definitely suffering from PTSD and should be given all the benefits that are due to him for this." According to the psychiatrist, "[t]his is something he did not have as a child and people, who knew [the Veteran] as a child, know this is not [the person] that returned from Iraq and definitely not the [person] that would throw this own wife down on the floor and grab her by the neck." Dr. O'L. commented that the Depakote, prescribed by the VA psychiatrist to treat the diagnosis of bipolar disorder, was useful for PTSD. Dr. O'L. would also prescribe an atypical antipsychotic and therapy. As to whether the Veteran has PTSD related to active service, the evidence is in relative equipoise. The Veteran maintains that he experienced the onset of PTSD as a result of his exposure to multiple firefights during his tour of duty in Iraq. Service records do confirm that he participated in Operation Enduring Freedom and Operation Iraqi Freedom in 2003. While, in July 2006, a VA clinic psychiatrist did not diagnose the Veteran with PTSD and found that he had a bipolar disorder, in January 2007, Dr. O'L. recounted the Veteran's complaints of paranoia, and that he had panic attacks, nightmares, and vivid flashbacks of combat-related events that happened during sleep and during the day and, apparently, did not find the Veteran's report of having these symptoms inconsistent with his medical and service history. Dr. O'L. diagnosed PTSD associated with the Veteran's experiences on active duty in Iraq. Although, in January 2011, the Veteran failed to report for the scheduled VA psychiatric examination. Dr. O'L. explained that the Veteran suffered from PTSD that he did not have as a child and that people who knew him as a child knew this was not the person who returned from Iraq, and definitely not the person that would throw his wife on the floor and grab her by the neck. This medical opinion has probative value and, after reviewing the record, the Board finds that such is plausible and probative. Additionally, the Veteran stated that he has experienced combat-related nightmares and flashbacks, and panic attacks since his separation from military service, an allegation that he is competent to make as a layman. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. at 310. Hence, in view of the totality of the evidence, the Board finds that the evidence is in relative equipoise as to whether the Veteran has PTSD that had its onset during his active military service. Accordingly, the Board resolves all reasonable doubt in his favor and finds that entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, is warranted. ORDER Service connection for tinnitus is denied. Service connection for PTSD is granted. ____________________________________________ JOHN KITLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs