Citation Nr: 1328814 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-38 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant and J.A. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 and July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the claim of entitlement to service connection for an acquired psychiatric disorder. The DRO hearing was scheduled and subsequently held in June 2008 at the Jackson, Mississippi RO. The Veteran testified at the hearing and a transcript is of record. The Veteran and J.A. testified at a Travel Board hearing in regard to both of the claims in June 2013. A transcript is of record. The Board acknowledges the ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, even if a Veteran only asserted that the claim is for service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Based upon this framework, as the record reveals diagnoses of adjustment disorder with anxiety and PTSD, the Board has recharacterized the issue as indicated above. 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 At the hearing before the undersigned Veterans Law Judge in April 2013 the Veteran reported that she had an appointment in the VA mental health clinic the morning of the hearing. Review of the claims file does not reveal that VA treatment records dated subsequent to January 2012 have been obtained and associated. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain all VA treatment records regarding the Veteran dated since January 2012. The Veteran contends that her hearing loss is related to being exposed to loud noise while on the flight line in service. She has reported that she was not provided hearing protection. A service personnel record indicates that the Veteran served as a Force Protection Escort, 9U100. Service treatment records do not reveal any complaint, diagnosis, or treatment for any hearing loss. Post service treatment records do not reveal any diagnosis of any hearing loss disability. In August 2009 the Veteran was noted to have hearing within normal limits. The Veteran indicated at the hearing before the undersigned that she had not been diagnosed with hearing loss and that her hearing had been tested a couple of years prior. She indicated that she did not believe that the testing showed hearing loss. She reported that she had hearing loss beginning when she returned from Saudi Arabia and that it has gotten worse without exposure to anything. As this remand seeks association with the claims file of additional VA treatment records, as the Veteran has competently reported that she has hearing loss that has become more severe, and as the Veteran has competently reported exposure to loud noise in service, the Board finds it necessary to afford the Veteran a VA medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends, in part, that her PTSD is due to attempted assaults in service. When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5) (2012); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). See also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1 ,2006). Although the Veteran has been provided general notice to supply the specific details of the personal trauma incident(s) that she contends resulted in PTSD, to date the Veteran has not been provided with adequate notice regarding the above. Consequently, the Veteran must be advised of these provisions. See Bradford v. Nicholson, 20 Vet. App. 200, 205-06 (2006); see also Gallegos v. Peake, 22 Vet. App. 329, 336 (2008) (noting that VA's notice must advise that "evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor," and must allow the Veteran the opportunity to furnish such evidence or advise VA of potential sources). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2012); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, the VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, as this remand requests the association with the claims file of additional evidence regarding the Veteran's psychiatric the Veteran must be afforded a VA medical examination. Accordingly, the case is REMANDED for the following action: 1. Provide notification of the provisions of 38 C.F.R. § 3.304(f)(5) pertaining to the alternative sources of evidence which may be used to substantiate the occurrence of an in-service personal assault, in support of a claim for service connection for PTSD. Inform the Veteran of the opportunity to provide evidence or information that pertains to the process of stressor verification. 2. Attempt to obtain and associate with the claims file all VA medical records pertaining to the Veteran dated since January 2012. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 3. Thereafter, afford the Veteran an appropriate VA examination to determine the nature, extent, onset and etiology of any hearing loss found to be present. The claims file should be made available to and reviewed by the examiner. All indicated studies, including an audiological evaluation, should be performed, and all findings should be reported in detail. The examiner should comment on the Veteran's report regarding the onset and continuity of symptomatology, the lay statements of record relating to the Veteran's hearing loss since service, and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any hearing loss found to be present is related to or had its onset during service, and particularly, to her report of in-service exposure to loud noise. The rationale for all opinions expressed should be provided in a legible report. 4. Thereafter, afford the Veteran a VA psychiatric examination, to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses her symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following: a. Whether the Veteran has PTSD and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should specifically determine whether the claimed in-service stressors that are consistent with the Veteran's service were sufficient to produce PTSD and whether any of the stressors are related to a fear of hostile military or terrorist activity consistent with the places, types, and circumstances of service. If the examiner determines that the Veteran has PTSD related to the claimed in-service stressor of personal assault, the examiner should review the claims file and render an opinion as to whether there is evidence of changed behavior after the alleged assault or any other evidence of record, which would be consistent with the alleged trauma. b. If the Veteran is diagnosed with any other psychiatric disorder, then the examiner is requested to provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that such psychiatric disorder is related to active military service to include any incident in service that would be consistent with the circumstances, conditions or hardships of such service. In determining whether the Veteran has PTSD or any other psychiatric disorder is related to service, the examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record. The examiner should provide an explanation for all conclusions reached. 5. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and her representative a supplemental statement of the case and provide an opportunity to respond. 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). _________________________________________________ MICHAEL MARTIN 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).