Citation Nr: 1337512 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-32 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), an anxiety disorder, dysthymia, a depressive disorder, and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction of the claims file has been subsequently transferred to the RO in Reno, Nevada. The Veteran testified before the undersigned Veterans Law Judge in July 2013. A transcript of the hearing is of record. As noted on the title page, the Board is recharacterizing the Veteran's PTSD claim to include other psychiatric disorders that have been diagnosed, i.e., an anxiety disorder, dysthymia, a depressive disorder, and major depressive disorder. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. The Board finds that additional development is required to satisfy VA's obligations under the VCAA. Bilateral Hearing Loss- The Veteran underwent a November 2009 VA Audiological Examination. The VA examiner opined that there was no nexus between the Veteran's bilateral hearing loss and service. In providing this negative medical opinion and rationale, the examiner appears to rely largely on the absence of documented hearing loss at time of separation. However, it must be noted that the absence of any documented in-service hearing loss is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In other words, a claimant need not have hearing loss in service in order for post service hearing loss to be due to in-service noise exposure. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 'does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service'). Given that the VA examiner's opinion that the Veteran's hearing loss is not related to in-service noise exposure is premised entirely on the fact that audiological testing during his separation examination did not show hearing loss, a new examination should be provided in order for the examiner to provide an adequate opinion. Acquired Psychiatric Disorder- The Veteran attributes his acquired psychiatric disorder to his in-service military occupational specialty (MOS) of being a voice intercept operator. He testified at his July 2013 BVA hearing that his job was to translate forms of radio intercepts that came in from the field in Vietnam to written reports. He asserts that he began to experience psychiatric issues in service but because of his position, that required a top secret special intelligence clearance, he was unable to seek help as his access would have been pulled. Based on the above, to include his assertions of continuity of symptomatology, the Board finds that the Veteran should be scheduled for a VA psychiatric examination by a medical professional with appropriate expertise to determine whether his current acquired psychiatric disorder is related to any incident of service. Moreover, the Veteran's Virtual VA claims file reflects that the Veteran has received medical treatment from the VA Sierra Nevada Health Care System; however, as the claims file only includes treatment records from that facility dated up to October 2012, any additional records should be obtained. The Veteran additionally testified at his July 2013 BVA hearing that he had received treatment at the Port Charlotte Community-Based Outpatient Clinic, VA Central California Health Care System, and VA Lahontan Valley Outpatient Clinic. Any outstanding records from these facilities should additionally be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify any outstanding treatment records relevant to his claim on appeal. After securing any necessary authorization from him, obtain all identified treatment records, to include any outstanding records from the VA Sierra Nevada Health Care System, Port Charlotte Community-Based Outpatient Clinic, VA Central California Health Care System, and VA Lahontan Valley Outpatient Clinic. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allow the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA audiological evaluation to determine the nature and etiology of any hearing loss present. All appropriate tests should be conducted. The claims folder should be reviewed by the examiner, and the examination report should note that review. Whether it is at least as likely as not (a 50 percent probability or greater), that any current hearing loss is etiologically related to the Veteran's active military service, to include any in-service noise exposure. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be scheduled for a VA psychiatric examination. 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 Veteran's claimed stressor(s). The examiner should additionally list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder either began during or was otherwise caused by the Veteran's military service, to include his MOS. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as 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). 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). _________________________________________________ F. JUDGE FLOWERS 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) (2013).