Citation Nr: 1330982 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-26 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant had active service from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Cleveland, Ohio (Tiger Team) Department of Veterans Affairs (VA) Regional Office (RO), which denied, amongst other issues, service connection for PTSD, bilateral hearing loss, and tinnitus. The claim lies with the Pittsburgh, Pennsylvania RO. During the pendency of this claim, the appellant has been diagnosed with PTSD and anxiety disorder, not otherwise specified. He also underwent testing which was suggestive of depression. Although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated, "but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Since he has been diagnosed with more than PTSD, the claim has been recharacterized as an acquired psychiatric disorder to include PTSD. It is now reflected as such on the title page. In September 2011, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record and associated with the claims folder. 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 on his part. REMAND The appellant asserts that he warrants service connection for an acquired psychiatric disorder to include PTSD, based upon service incurrence. He also maintains that his bilateral hearing loss and tinnitus are the result of noise exposure in service. As to the issue of service connection for PTSD, the appellant has alleged he had in-service stressful experiences. During his September 2011 Travel Board hearing, the appellant alleged that while in Vietnam, an explosion occurred and a bunker collapsed on him, and a pole, similar to a telephone pole, pinned him down. He indicated that he was fearful because he could not breathe and felt as if he was going to die. The pole was lifted from his chest and face and he was taken in for treatment. The appellant also related that in May or June 1967, while traveling to Khe Sahn, his convoy and the Marines of the 3rd Division were attacked. He stated that the Marines took the brunt of the attack, but that he was required to transport back to base camp and identify the dead bodies that were involved in the attack. This was a stressor to him. This occurred near the Rock Pile Hill 881. Finally, in May 1967, the appellant stated that his unit took fire from the enemy and as a result of the ground fire, he was knocked into a bunker and his tooth was cracked. The tooth had to be extracted while in Vietnam. A private medical statement of December 2010 reflected a diagnosis of PTSD and anxiety disorder. Additionally, he testified at his September 2011 Travel Board hearing that he receives treatment on an outpatient basis from VA. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). However, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (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 that 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. For purposes of this paragraph, "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. See 75 Fed. Reg. 39843 (July 13, 2010). While effective on July 13, 2010, this final rule applies to an application for service connection for PTSD that was appealed to the Board before July 12, 2010 but has not been decided by the Board as of that date. The appellant's aforementioned claim of being afraid during hostile fire from the enemy, of having a pole pin him down in a bunker, of being knocked in a bunker and losing his tooth, and of transportation and identification of soldiers killed during an attack, potentially falls within the scope of being in "fear of hostile military or terrorist activity". The appellant underwent VA examination in October 2009. However, during that examination, he had not been diagnosed with PTSD or any other psychiatric disability. He also was not being treated for his PTSD by VA. At his September 2011 Board hearing, he testified that he has been receiving PTSD treatment from VA since approximately 2008. He warrants an additional VA examination. As for the issues of service connection for bilateral hearing loss and tinnitus, the RO indicated that there was no current evidence of hearing loss of record. The appellant asserts that he presently wears hearing aids provided to him by VA. Therefore, there should be records indicating his treatment for such. Additionally, the RO indicates that there is no medical evidence of record indicating that tinnitus is related to service. In September 2010, his private physician has indicated that his tinnitus has been ongoing since that time. He has not been provided an audiology examination in connection with his bilateral hearing loss and tinnitus claims. He warrants such an examination. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA medical records and any other medical evidence that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. Thereafter, the appellant should be afforded a VA psychiatric examination to determine the nature and etiology of his claimed PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the appellant, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the appellant has PTSD meeting the criteria of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not (50 percent probability or greater) that the appellant's PTSD is the result of any in-service claimed event. The VA examiner should specifically determine whether the appellant has a claimed stressor that is related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the appellant's symptoms are related to the claimed stressor. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the appellant's claimed stressor(s). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a claimant 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 claimant 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 claimant's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. If an acquired psychiatric disability other than PTSD is diagnosed, e.g., anxiety disorder, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the psychiatric condition had its onset in service or is otherwise causally related to the appellant's service. The examiner should take into consideration the statement submitted by the appellant's sergeant major who indicated that he and the appellant were responsible for transporting and identifying the bodies of dead soldiers in May or June 1967 after an attack. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the appellant for a VA audiology and ENT examination(s), including an audiogram and Maryland CNC speech recognition test, to determine the nature, severity, and etiology of any current bilateral hearing loss and tinnitus he may have. All indicated testing and studies should be made. The examiner(s) are then requested to indicate whether it is at least as likely as not (50 percent probability or greater) that the appellant's bilateral hearing loss is etiologically related to service, especially any acoustic trauma sustained during service, or any organic condition requiring irrigation and/or indicating drainage of the ears in service, and specifically taking into consideration his employment working as a turret artillery repairman with no hearing protection. The examiner(s) should also take into consideration the statements provided by his fellow comrades in Vietnam who were stationed with him in Vietnam. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Following completion of any other development or action deemed necessary, the RO/AMC should readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if deemed appropriate. 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). _________________________________________________ BARBARA B. COPELAND 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).