Citation Nr: 1334245 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-04 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes, to include as a result of exposure to herbicides. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. 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 After carefully reviewing the file, the Board finds that the claims must be remanded for additional development. Reconstruction of Unavailable Service Records It is important to note that the Veteran's service records, with the exception of his separation form, are unavailable from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The Board recognizes that there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the RO contacted the NPRC and received a negative reply for service treatment records, service personnel records, and records verifying Vietnam service. Although the Veteran was advised of the unavailability of these documents and was advised that he may submit evidence from alternative sources to establish his claim for service connection, it does not appear that the Veteran was ever provided with an NA Form 13055 to complete so that additional efforts could be made to locate records from other sources in an attempt to reconstruct lost medical data. See M21-MR Part III.iii.2.E.26 (pertaining to records destroyed at the NPRC). The Board recognizes that an NA Form 13055 is not needed if information required to process a request to reconstruct a veteran's lost records under code MO1 is already of record, but that is not the case here, where it does not appear that the Veteran provided or was requested to provide specific information regarding the dates and location of treatment. As a result, in order to meet VA's heightened obligations in this case, the appeal must be remanded so that the Veteran can be provided with an NA Form 13055, as well as any additional development that may be warranted based upon the information provided. Unavailability of Private Treatment Records The Veteran stated that he was treated by Dr. B.D.E. for diabetes beginning in January 1994. The RO made two attempts to obtain records from Dr. B.D.E., but no records were submitted. Accordingly, the Veteran must be provided with notice of the unavailability of these records in compliance with 38 C.F.R. § 3.159(e). Verification of PTSD Stressor Also, on remand, an attempt should be made to obtain corroboration from the Army and Joint Services Records Research Center (JSRRC), or other appropriate repository, regarding the Veteran's stressor of taking on enemy fire aboard a C130 airplane while departing from Bien Hoa Air Force Base in Vietnam. He testified that the incident occurred around February or March 1967. Because the Veteran was able to identify the location and approximate date of this stressor, and he previously provided information regarding his unit and assignment in a prior VA Form 21-0781, this information should be submitted for verification. For the same reason, an attempt should also be made to verify the Veteran's claimed land mine stressor. VA PTSD Examination/Opinion Finally, with respect to the Veteran's claim for entitlement to service connection for PTSD, the Board finds that a VA examination and opinion is warranted because there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran testified that he attempted to get treatment through VA but, for some reason, the appointment was never made. See Board Hearing Transcript at p. 8. According to PTSD screening in an August 2005 VA treatment record on Virtual VA, the Veteran was previously diagnosed with PTSD. However, no further assessment of his claimed psychiatric disorder appears to have been conducted during the appeal period. In this case, the Veteran testified that he was greatly affected by incidents in service and that he has tried to get treatment for PTSD, which the Board finds sufficient to indicate that any current PTSD symptoms he may have may be related to service under the low threshold set forth by McLendon, especially given VA's heightened duty to assist in this case due to missing service records. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a NA Form 13055 to complete so that additional efforts can be made to reconstruct lost service records. 2. Provide the Veteran notice of the unavailability of records from Dr. B.D.E. pursuant to 38 C.F.R. § 3.159(e)(1), outlining the following information: (a) the identity of the records VA was unable to obtain; (b) an explanation of the efforts VA made to obtain the records; (c) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record at the time unless the claimant submits the records; and (d) notice that the claimant is ultimately responsible for providing the evidence. 3. With any necessary assistance from the Veteran, attempt to verify the Veteran's claimed stressors of (i) taking on enemy fire aboard a C130 airplane while departing from Bien Hoa Air Force Base in Vietnam around February or March 1967, and (ii) picking up the remains of a 17 year old who had stepped on a land mine in Tan Son Nhut or Cam Ranh Bay in Vietnam around October or November 1965 while assigned to the 314th OMS, including contacting the U.S. Army and Joint Services Records Research Center (JSRRC), or other suitable agency, as appropriate. 4. After completing the development outlined in steps (1) through (3) above, schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to determine the nature and etiology of his claimed PTSD. The claims file [i.e. both the paper claims file and any relevant records contained in the paperless claims file(s)] must be provided to and reviewed by the examiner. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Whether the Veteran has a current diagnosis of PTSD, consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV). b) If a diagnosis of PTSD is made, then the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that the PTSD is related to the Veteran's active military service, to include any verified PTSD stressors or fear of hostile military or terrorist activity. c) If a psychiatric disorder other than PTSD is diagnosed, then the examiner is asked to state whether it is at least as likely as not (a 50 percent probability or greater) that the currently diagnosed acquired psychiatric disorder was incurred in, or is otherwise etiologically related to, the Veteran's active military service. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, then the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ TANYA A. SMITH Acting 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).