Citation Nr: 1338609 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-41 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, although the RO has adjudicated the Veteran's claim as entitlement to service connection for PTSD, the issue on appeal encompasses a claim for service connection for an underlying psychiatric disability, regardless of how it is diagnosed. The Veteran testified before the undersigned at a February 2013 Travel Board hearing. The hearing transcript is of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA " eFolder ." 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 a review of the evidence, the Board is of the opinion that further development is required before the Board decides the issue on appeal. The Veteran was afforded a VA audiological examination in March 2009, to determine the etiology of his claimed bilateral hearing loss disability. The examiner noted the Veteran's reports of noise exposure from 105 howitzers, 175mm and 8 inch self-propelled guns, and 4 point deuce mortars, with no hearing protection, as an assistant gunner, during active duty in Vietnam. He also noted the Veteran's reports of 20 years of occupational industrial noise exposure, with the use of hearing protection. The examiner diagnosed the Veteran with bilateral high frequency sensorineural hearing loss, with tinnitus, and opined that it was less likely as not that the bilateral hearing loss was caused by or a result of military noise exposure. His rationale was that although military noise exposure is conceded, the Veteran's hearing was normal at separation and therefore, any current hearing loss did not occur during military service. He also noted that an Institute of Medicine study on the military and noise exposure stated that there was no scientific evidence to support delayed onset of noise-induced hearing loss. He also noted that the Veteran had reported 20 years of occupational noise exposure that may have contributed to his current hearing loss. However, the examiner opined that the Veteran's tinnitus was likely related to his military service. The Board notes that the Veteran was subsequently granted service connection for tinnitus, based on his in-service noise exposure. See March 2009 RO rating decision. The Board finds that the examination report reflects no consideration of the Veteran's reports of hearing loss that started in service, and continued after his discharge. Specifically, he reported during his February 2013 Travel Board hearing that he experienced difficulty hearing, as well as pain, tingling and ringing in the ears difficulty hearing, as well as pain, tingling and ringing in the ears in service and continuously thereafter, as a result of consistently being exposed to a significant amount of noise exposure from weapons such as 175mm self-propelled guns and howitzers, during firing missions in Vietnam, for 11-13 months. See February 2013 Travel Board Hearing transcript. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet.App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet.App. 295 (2008). As the examiner did not consider all of the Veteran's history or complaints, his negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's bilateral hearing loss disability is necessary. See 38 C.F.R. § 4.2 (2013). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). The Veteran contends that he has a current psychiatric disability, which developed as a result of stressful experiences during active duty in Vietnam. Service treatment records are negative for any complaints, treatment or a diagnosis of a psychiatric disability, and there was no psychiatric disability diagnosed at the time of the Veteran's discharge from active duty. The post-service medical evidence of record shows that the Veteran has reported psychiatric symptoms in service and a continuity of symptoms since. The medical evidence does not show that the Veteran has a current diagnosis of PTSD. In this regard, the Board notes that during VA outpatient treatment in January 2008, the Veteran reported a history of traumatic experiences during combat service in Vietnam. He complained of sleep deprivation, anxiety and social isolation. During a follow-up appointment in March 2008, the Veteran complained of irritability at work with co-workers, and sleep deprivation, related to dreams of being overrun. After mental status examination, it was determined that the Veteran did not meet the criteria for a diagnosis of PTSD at that time. A July 2008 treatment record from the Veteran's treating therapist at the Tampa, Florida Vet Center, indicates that the Veteran had been receiving treatment since April 2008, for symptoms of an "acute stress disorder," related to stressful experiences in Vietnam, as a field artillery crewman in a unit that consistently engaged the enemy in support of U.S. ground operations. Specifically, it was noted that the Veteran experienced nightmares and symptoms of anger, irritability, depression, detachment, active startle response, social isolation, intrusive recollections, paranoia (sleeping with a rifle), and recurring thoughts that something bad would happen. He also experienced problems with personal and work relationships. Although the record does not contain a current diagnosis of PTSD, the Veteran testified during his February 2013 hearing that he believes he has PTSD, manifested by current psychiatric symptoms, including flashbacks, panic attacks, an easy startle response, depression, anxiety, social isolation, crying spells, and avoidance behaviors, which were related to his experiences during active duty in the Republic of Korea and Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In addition, VA recently amended its regulations governing service connection for PTSD liberalizing the evidentiary standard for establishing the required in-service stressor and for establishing a medical diagnosis of PTSD. The revised regulations became effective July 13, 2010, and apply to cases pending before the Board as of that date. 75 Fed. Reg. 41,092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Under the revised regulations, the Veteran must have experienced, witnessed, or have been confronted by 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, and the Veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). Moreover, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service. Id. The Veteran testified during his February 2013 Travel Board hearing that his base was attacked with incoming fire on occasion. He also reported that he experienced a generalized heightened sense of awareness at all times while in Vietnam, and that he experienced and witnessed events and circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself and others. He also testified that he was under constant fear of hostile military activity. In March 2009, a formal finding of lack of information required to corroborate stressor(s) associated with a claim for service connection for PTSD was issued, indicating that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to research the case for an Army record. However, under the revised criteria, a Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, so long as there is no clear and convincing evidence to the contrary in the record, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of service, in the following circumstances: when a Veteran was diagnosed with PTSD in service (38 C.F.R. § 3.304(f)(1)); when a Veteran engaged in combat with the enemy (38 C.F.R. § 3.304(f)(2)); when a Veteran experienced fear of hostile military or terrorist activity (38 C.F.R. § 3.304(f)(3)); or when a Veteran was a prisoner of war (38 C.F.R. § 3.304(f)(4)), 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304(f)). Upon considering all evidence of record, the Board, as the fact finder, finds the Veteran's account of his experiences during his period of service which concluded in an honorable discharges to be competent. Furthermore, the Board finds the Veteran's testimony to be credible, and there is no evidence of record indicating that the Veteran is not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board also finds that the Veteran's claimed in-service stressors are consistent with the places, types and circumstances of his service. The Veteran's service separation documents are silent for awards or decorations indicating combat service. However, his 's DD-214 shows that he served as an Army Field Artillery Crewman from July 1965 to July 1968, with service in the Republic of Vietnam from August 29, 1966 to September 23, 1967, during the time the Veteran's claimed PTSD stressors occurred. See January 2009 statement from the Veteran. It is significant that his military occupational specialty (Field Artillery Crewman) suggests exposure to the stressors claimed. Moreover, a claimed stressor need not be corroborated in every detail. Souzzi v. Brown, 10 Vet. App. 307, 311 (1997). In light of the recent revisions to 38 C.F.R. § 3.304(f), as outlined above, the Board finds that the evidence of record sufficiently satisfies the criteria necessary to confirm the Veteran's claimed in-service stressors. Further, as the Veteran's claimed in-service stressors include his assertion that he experienced, witnessed, or was confronted with threatened death or serious injury to the physical integrity of others and resulted in feelings of terror, fear, or hopelessness, his claimed in-service stressors are thus characterized as "fear of hostile military or terrorist activity" within the meaning of 38 C.F.R. § 3.304(f)(3). See 75 Fed. Reg. 39852 (July 13, 2010). The medical evidence of record contains competent evidence of a current psychiatric disability. The Veteran's reports of in-service psychiatric symptoms and a continuity of symptomatology provide evidence that a current psychiatric disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, contemporaneous evidence of an ongoing psychiatric disability in the years following service is not of record. Therefore, an examination and opinion are needed to determine the etiology of any currently diagnosed psychiatric disabilities. 38 U.S.C.A. § 5103A(d) (West 2002). The Board further notes that the claims file, including the Virtual VA e-folder, does not contain any treatment records dated after September 2008. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any psychiatric disorders. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA medical records dated from September 2008 to the present. 2. Schedule the Veteran for a VA audiology examination to determine the etiology of his current bilateral hearing loss. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner is advised that military noise exposure is conceded. The examiner should elicit from the Veteran a detailed account of any instances of noise exposure before and after service, and whether the Veteran used hearing protection devices. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hearing loss is the result of noise exposure or other injury or disease in active service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's lay statements regarding the onset of symptoms and continuity of such symptoms. In this regard, the Veteran has reported experiencing difficulty hearing, as well as pain, tingling and ringing in the ears in service and continuously thereafter, as a result of consistently being exposed to a significant amount of noise exposure from weapons such as 175mm self-propelled guns and howitzers, during firing missions in Vietnam, for 11-13 months. The examiner is advised that the Veteran is competent to report injuries, including noise exposure, and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to provide an opinion as to whether it is as likely as not (50 percent probability or greater ) that he currently has PTSD that resulted from his active duty service, pursuant to the recently revised provisions of 38 C.F.R. § 3.304(f)(3) (see pages 6 & 7 herein). The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a current psychiatric disability is the result of an injury or disease in active service. The examiner should note whether the Veteran meets the criteria for a diagnosis of PTSD. If he does not meet those criteria, the examiner should specify which criteria are missing. If the Veteran meets the criteria for a diagnosis of PTSD, the examiner should specify the stressor or stressors supporting the diagnosis. In rendering the requested opinion, the examiner should specifically opine whether or not the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity. With respect to any other acquired psychiatric disorders found to be present, the examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more ) that the disorder originated while the Veteran was serving on active duty or is otherwise etiologically related to service. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued before the case is returned to the Board, if otherwise in order. 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). 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). _________________________________________________ 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).