Citation Nr: 1337304	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  13-01 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to service connection for acquired psychiatric disability, to include PTSD.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	James M. McElfresh II, Agent


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel

INTRODUCTION

The Veteran had active service from February 1968 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2010 and July 2011 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) that denied claims seeking service connection for PTSD and tinnitus, respectively. 

While the disability claimed by the Veteran is PTSD, claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record.  Clemons v. Shinseki, 23 Vet. App. 1 (2010).  Thus, the Veteran's claim also encompasses his diagnoses of major depressive disorder and generalized anxiety.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


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(f)(5) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2013).

The Veteran's PTSD claim is predicated on a reported history of in-service personal assault.  VA regulations provide that, if 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.  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).  The United States Court of Appeals for the Federal Circuit 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 United States Court of Appeals for Veterans Claims 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 his symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider 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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that the symptoms of his PTSD were caused by military sexual trauma (MST) and that they have continued since service.  The evidence shows that the Veteran has a current diagnosis of PTSD.  Specifically, VA treatment records show a diagnosis of PTSD by a VA psychologist in March 2010.  

In lay statements and in narratives of history to medical professionals, the Veteran has reported that he was the victim of MST during active service.  In lay statements, a friend who has known the Veteran for forty years and the Veteran's sister-in-law each attested that shortly after his separation from service, he told them about the MST.  His nephew also submitted a statement that he was told about the MST in 1995.  The record shows that the Veteran was in therapy from the mid-1990s to the present, but did not report the MST to a medical professional until January 2010.  He has stated that he was too ashamed to tell anyone outside of close friends and family until that time.

While the Veteran's service treatment records are negative for objective evidence of an MST, the Veteran is competent to report a history of MST and the onset and recurrence of psychiatric symptoms.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno.  Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  Further, in its capacity as finder of fact, the Board finds that the Veteran's report of a stressor is credible, as it is internally consistent, consistent with the medical evidence of record, and corroborated by lay statements of family and friends.  38 U.S.C.A. § 1154(a); Caluza.

Moreover, medical opinion evidence may corroborate a personal assault stressor.  38 C.F.R. § 3.304(f)(5).  The VA psychologist who diagnosed the Veteran's PTSD in March 2010 found the Veteran's report of MST to be credible.  Menegassi.  In light of the lay and medical evidence, the Board finds the Veteran's report of an in-service stressor credible and corroborated.

Finally, the VA psychologist connected the Veteran's PTSD to his in-service MST.  Specifically, following the thorough March 2010 PTSD Assessment, she diagnosed "MST-related PTSD."  There is no evidence of record in conflict with this medical opinion.  As such, service connection for PTSD is warranted.  


ORDER

Service connection for acquired psychiatric disability, to include PTSD, is granted.


REMAND

In a July 2011 rating decision, the RO denied service connection for tinnitus.  In January 2012, the Veteran submitted a letter disagreeing with that decision.  The Board accepts the Veteran's January 2012 statement as a Notice of Disagreement with the July 2011 rating decision.  See 38 C.F.R. § 20.201 (2013).  To date, however, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this claim.  

Because the Veteran filed an NOD to the RO's July 2011 rating decision and the RO failed to issue him an SOC on the issue, the matter remains pending and in appellate status until the benefit sought on appeal is granted, i.e., service connection, or a Board decision resolved the appeal.  See Jones v. Shinseki, 619 F.3d 1368 (Fed. Cir. 2010) (where an NOD is filed and no SOC is issued, the claim is resolved by a later appellate adjudication of a subsequent claim where the claim stems from the same underlying disorder and the claimed disability is identical or substantially similar).  The RO issued another rating decision in June 2013 denying service connection for tinnitus.  However, under Jones, this is insufficient as the claim may only be resolved by appellate adjudication.

Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

Issue the Veteran an SOC with respect to his claim of entitlement to service connection for tinnitus, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue.

The Veteran 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 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