Citation Nr: 1332934 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-24 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from December 1991 to December 1995 and from April 1996 to July 2000, including service in the Southwest Asia theater of operations from July to November 1994 and service in Somalia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for service connection for PTSD to a compensable rating for left ear hearing loss. In July 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The issues of entitlement to a disability rating in excess of 10 percent for left ear hearing loss is 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 Veteran's PTSD had its onset in service. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 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 an April 2008 statement that his in-service stressors include seeing Rwandan civilians, including children and infants, dying from malnutrition or injuries from Rwandan soldiers, between July 27, 1994 and August 16, 1994; firing at and being fired upon by Somali soldiers between September 8, 1994 and September 15, 1994; and firing at and being fired upon by Iraqi soldiers between October 7, 1994 and October 29, 1994. In a December 2010 statement, the Veteran reported that he experiences survivor's guilt daily from witnessing and being unable to assist a 3-year old Rwandan girl who died of malnutrition; he also reported taking fire and fatally shooting the assailant while protecting the airport in Mogadishu, Somalia, immediately after which he experienced shock and fear of retaliation. At his July 2011 videoconference hearing, the Veteran testified that he was fired upon in Rwanda and Somalia. See July 2011 transcript, p. 7. He further reported that a Rwandan child died of malnutrition in his arms. Id., p. 8. The Veteran also stated that he saw the aftermath of a suicide as part of his job as a military police investigator during his second tour of duty. Id., p. 10. He stated that within one year of separation from service he began having nightmares, avoiding people, and avoiding places which reminded him of overseas. Id., pp. 10-11. 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). 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 circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). 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 posttraumatic stress disorder 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. 38 C.F.R. § 3.304(f)(3). 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 multiple VA clinicians diagnosing the Veteran with PTSD from November 2007 through March 2010. Second, there is a link, established by medical evidence, between current symptoms and an in-service stressor. Specifically, the Veteran reported the same stressful incidents of combat exposure and witnessing children die in refugee camps to his treating VA psychiatric physician, who diagnosed the Veteran with PTSD and opined in December 2007 that his "history of symptoms seems quite compatible with posttraumatic stress related to his military experience." Third, there is credible supporting evidence that the claimed in-service stressors occurred. The Veteran has submitted a service personnel record, NAVMC 118(9), Combat History, Expeditions, and Awards Record, showing that he participated in operations in Somalia and Southwest Asia. Furthermore, the Board finds that the Veteran's lay testimony alone may establish the occurrence of his claimed in-service stressor under these circumstances because the stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity and the December 2007 VA psychiatrist confirmed that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3); see also 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 claimed in-service stressors 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 his claimed stressors, including fear of hostile military or terrorist activity resulting from a firefight in Mogadishu, Somalia, in which he was fired upon and killed his assailant. 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 December 2007 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 is currently in receipt of service connection for left ear hearing loss at a noncompensable rating. The Veteran reported in his May 2010 substantive appeal (VA Form 9) that his hearing loss has worsened since the most recent VA examination, which was conducted in October 2008. As such, the evidence indicates that the Veteran's 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); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, the Veteran reported in a December 2010 letter that his hearing problems resulted from his duties as a rifleman and marksmanship instructor during service. Furthermore, he testified at his July 2011 videoconference hearing that his right ear hearing loss may now meet the threshold for service connection. See transcript, pp. 23-24. Because claims involving service connection for one ear and a higher rating for the other ear are inextricably intertwined, the Board finds that the issue of whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for right ear hearing loss is likewise remanded. Simmons v. Shinseki, 24 Vet. App. 87, 93 (2010). 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 Bay Pines, Florida, and Naples, Florida, 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. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his 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 Bay Pines, Florida, and Naples, Florida, 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 hearing loss, provide him with an appropriate VA examination to determine the nature and severity of that disability. The examiner must also opine as to whether it is at least as likely as not that the Veteran has right ear hearing loss that is related to or had its onset in service. The claims file must be made available to and be reviewed by the examiner and an audiological evaluation 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 April 2004 and October 2008, and any lay and clinical evidence suggesting that his overall hearing loss has worsened, resulting in more severe occupational and social impairment. The examiner should also discuss the impact that the Veteran's hearing loss has on his ability to secure and maintain substantially gainful employment. 3. Then readjudicate the appeal. If any 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs