Citation Nr: 1327418	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  12-26 585	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David Gratz, Counsel





INTRODUCTION

The Veteran served on active duty from August 1965 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the Veteran's claims for service connection for PTSD and for a compensable rating for bilateral hearing loss.

The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's PTSD had its onset in service.


CONCLUSION OF LAW

PTSD was incurred in service.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for PTSD, which represents a complete grant of that benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran contends in his October 2010 statement that he experienced an incident of military sexual trauma (MST) during service.  Specifically, the Veteran competently and credibly reports that he was sexually assaulted by a military policeman in June 1967.  The Veteran explained that he had returned to base following an evening at a bar, and was confronted by a military policeman who invited him into his quarters under the guise of giving him a place to sleep off his inebriation without getting into trouble.  The Veteran reported that when he awoke, the military policeman was in the process of sexually assaulting him.  The Veteran explained that he did not report the assault because he felt ashamed, and he did not think that his report on a military policeman would be believed.  In a statement accompanying his September 2012 substantive appeal, the Veteran explained that he took one month of leave in Italy after the incident to get away from his assailant.

Additionally, the Veteran's spouse wrote in October 2010 that the Veteran has had ongoing nightmares and a startle response.

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).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); (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, unless the stressor is related to a veteran's fear of hostile military or terrorist activity.  38 C.F.R. § 3.304(f).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated."  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' "in personal-assault cases).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  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).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

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 Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

The Board finds that the evidence supports an award of service connection for PTSD.  First, there is medical evidence from three VA clinicians diagnosing the Veteran with PTSD in August 2010 and September 2010.

Second, there is a link, established by medical evidence, between current symptoms and an in-service stressor.  Specifically, the Veteran reported the same incident to his treating VA clinician, a psychiatry physician in charge, who opined in September 2010 that the Veteran's PTSD is a direct consequence of the military sexual trauma by a military policeman that he experienced during service.  Another VA diagnosis of PTSD due to sexual abuse in the military, printed in August 2010, is also of record.

Third, there is credible supporting evidence that the claimed in-service stressor occurred.  Pursuant to 38 C.F.R. § 3.304(f)(5), records of mental health counseling may corroborate a veteran's account of a stressor incident.  Here, two such corroborating VA treatment records, dated August 2010 and September 2010, are present in the claims file.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  Moreover, the Veteran's statements are credible by virtue of their consistency over time.  Finally, the Board notes that no contradictory opinions regarding the occurrence of the Veteran's stressor are of record.  Therefore, the Board finds that the Veteran's stressor is corroborated by his VA treatment records.  Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011).

Consequently, the Board finds that the Veteran's statements and testimony are credible, and the most probative evidence suggests that the claimed in-service stressor occurred.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence).

In light of the foregoing, the Board finds that the Veteran has a current diagnosis of PTSD resulting from the claimed stressor event of military sexual trauma by a military policeman.  The evidence, including the Veteran's statements to VA and his treating VA clinician, credibly establish the occurrence of the stressor.  As such, the nexus opinion provided by the September 2010 VA psychiatrist linking the Veteran's PTSD to his service was based on credible facts.  Further, no negative nexus opinion is of record.  The Board thus finds that the criteria for service connection for PTSD are met and that service connection for PTSD is warranted.


ORDER

Service connection for PTSD is granted.


REMAND

The Veteran reported in his September 2012 substantive appeal (VA Form 9) that his bilateral hearing loss has worsened since the most recent VA examination, which was conducted in November 2010, and that he had been scheduled for a new audio examination on November 7, 2012.  As the Veteran's representative correctly observed in a February 2013 written argument, a VA examination subsequent to the November 2010 examination is of record in either the paper or electronic claims file.  As such, the evidence indicates that the Veteran's bilateral hearing loss has increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of that disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).

As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records.  Any additional, pertinent VA treatment records, including those from the VAMC in Northport, New York, should either be made accessible on Virtual VA or be printed and added to the file.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

Accordingly, the case is REMANDED for the following action:

1.  The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his bilateral hearing loss that are not already of record.  The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment, including those from the VAMC in Northport, New York, and associate them with the claims file.  Any negative response should be in writing and associated with the claims file.

2.  After obtaining any outstanding treatment records regarding the Veteran's bilateral hearing loss, provide him with an appropriate VA examination to determine the nature and severity of that disability.  The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted.  The examiner should report all pertinent findings.

The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examinations conducted in November 2010, March 2003, and July 2001, and any lay and clinical evidence suggesting that his overall bilateral hearing loss has worsened, resulting in more severe occupational and social impairment.  The examiner should also discuss the impact that the Veteran's bilateral hearing loss has on his ability to secure and maintain substantially gainful employment.

3.  Then, after providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal.  If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide 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 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs