Citation Nr: 1337737 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-11 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and dysthymic disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959 to November 1967 and from May 1970 to May 1974. He also had National Guard service from February 1975 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for hearing loss and PTSD. Although the Veteran only made a claim for PTSD, the record contains a diagnosis of dysthymic disorder as well. 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. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Therefore, the issue on appeal has been recharacterized as stated above The issues of entitlement to service connection for hearing loss and dysthymic disorder are 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 does not have a current PTSD disability, and his dysthymic disorder was not incurred in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In July 2008, the RO sent a letter to the Veteran providing him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of his claims for service connection. The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded a VA examination in December 2008 to evaluate his psychiatric condition. This examination addressed the pertinent rating criteria and provided detailed rationale for the opinions and conclusions made. The Veteran had an opportunity to submit additional evidence and provided statements in support of his claim. The Board notes that the claims file does not include service treatment records from the Veteran's National Guard service in 1975 and 1976. The Veteran, however, complains of symptoms he has experienced in the past several years and never referenced his National Guard service during the claims process. The crux of the following decision is based on the lack of a current disability; therefore, service treatment records from the seventies would not reasonably assist the Veteran in substantiating his claim for service connection for psychiatric disability. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. To establish entitlement to service-connection, evidence must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). In addition to the above criteria, claims for service connection for PTSD require medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence provides that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the Veteran's lay statements alone may generally establish the occurrence of the stressor. See id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that the Veteran does not have a current PTSD disability and is not eligible for service connection for PTSD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection may not be granted where there is no present disability shown). The Veteran is competent to report symptoms of a mental health disorder but not to diagnose such a disorder as this requires specialized knowledge, training, and application of psychological tests. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran reported having nightmares, flashbacks, irritability, avoiding people, and violent episodes in the past. Although the Board finds the Veteran credible in some regards, the accuracy of the Veteran's reports of symptoms is better assessed by a medical professional, here the VA examiner. VA treatment records from June 2008 to March 2012 list his on-going mental health problems as depression, PTSD, and alcoholism. The treatment received, however, consisted mainly of alcohol counseling with some treatment for depression. Treatment records also mentioned suicidal ideations. He was treated at an in-patient facility after he sought help for alcoholism and other related problems. See 2/10 Discharge Forms. VA treatment shows positive screens for PTSD, but as the December 2008 VA examiner explained, these routine screenings do not apply the DSM-IV and are not a sufficient diagnosis for VA purposes. See 38 C.F.R. § 4.125; see also Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) Fourth Edition (1994). The December 2008 VA examiner concluded the Veteran does not have PTSD. The examiner used two evaluations to determine if the Veteran suffered from PTSD, and in both tests, he scored above the cut off for diagnosis. Further, the examiner tested the Veteran to determine if he was feigning or exaggerating his symptoms. The result of that test was "probable" meaning he was exaggerating symptoms consciously or unconsciously. Based on these findings, the Veteran was given another test, the symptom validity test, in which his results again indicated that he was feigning symptoms. As such, the Veteran's subjective reports of symptoms received little probative value in the examination and in this decision. Finally, the examiner concluded that the Veteran does not have PTSD because the results of objective testing did not conform to DSM-IV criteria. The Board notes that the Veteran gave accounts of incidents in service which could qualify as stressors for PTSD; however, service connection may not be granted where there is no current disability. Therefore, discussion of the other two elements is moot. See Brammer, 3 Vet. App. 225. Based on the preponderance of the evidence, the Veteran does not have a current PTSD disability, service connection is not warranted, and the benefit of the doubt is inapplicable. See 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304. The examiner diagnosed the Veteran as having alcohol dependence and dysthymic disorder. Generally, compensation is not payable for a primary alcohol abuse as a disability. 38 U.S.C.A §§ 1110, 1131. Regarding the dysthymic disorder, the examiner noted that it appears to have pre-existed the Veteran's military service and was likely caused by reported events during childhood and adolescence. He noted that they were likely exacerbated in 1995 by his motor vehicle accident and loss of his job. The December 2008 VA examiner opined that the Veteran's dysthymic disorder was caused by or a result of an in-service event. Further, the examiner noted that dysthymic disorder did not appear to be aggravated by his military service. Indeed, a review of the Veteran's service treatment records show no evidence of any psychiatric disability. In this regard, the Board notes that the Veteran is presumed to have been sound upon entry into service, and there is no evidence to rebut that presumption. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Nonetheless, there is absolutely no evidence of psychiatric disability until many years after service, and the competent evidence of record does not show a nexus between his current dysthymic disorder and service. Thus, to the extent that the examiner determined that the dysthymic disorder pre-existed service, that determination was harmless. The fact that there was no evidence of psychiatric issues in service was the determinative fact. ORDER Service connection for an acquired psychiatric disability, to include PTSD and dysthymic disorder, is denied. REMAND VA opinions from December 2008 on hearing loss are internally inconsistent; therefore, a new opinion is needed to properly adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the Veteran's service treatment records (STR) show a threshold shift in his hearing during service. See STR from 12/59, 8/61, and 10/67. The December 2008 examiner concluded that the Veteran's hearing loss was less likely than not related to his service because there was no indication of hearing loss in his service records. In the same opinion, however, the examiner concluded that the Veteran's tinnitus was related to service because treatment records showed a significant hearing threshold shift during service. As such, this opinion is inconsistent and inadequate to evaluate the hearing loss claim. See Hensley v. Brown, 5 Vet App 155 (1993). Further, the Veteran's service records indicate he had National Guard service from February 1975 to March 1976. Additional development is needed to determine the dates of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) and to obtain any service treatment records from that time. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any service treatment and personnel records in his possession. 2. Thereafter, request verification of the Veteran's periods of ACDUTRA and INACDUTRA. Specific dates of such service are needed. 3. Obtain any service treatment records for the Veteran's periods of ACDUTRA and INACDUTRA. If these records are unavailable, document efforts to search alternate sources of records. 4. After completing the above tasks, forward the claims file to the December 2008 VA examiner, or another examiner if he/she is unavailable, to provide an opinion on service connection for hearing loss. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss was caused by noise exposure in service The examiner should consider the threshold shift in hearing during service. The examiner must provide a rationale for each opinion. If the requested opinion cannot be provided without resort to speculation, court cases require that examiners explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 5. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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 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. 2013). _________________________________________________ James L. March 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). Department of Veterans Affairs