Citation Nr: 1342017	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  12-23 827	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for a mental disability, including posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from July 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran's notice of disagreement was received in October 2010.  A statement of the case was issued in August 2012, and a substantive appeal was received in August 2012.

The Veteran seeks service connection for PTSD.  In accordance with the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has expanded the issue to ensure that entitlement to service connection for any mental disability is properly considered. 

The issues of entitlement to service connection for hearing loss and tinnitus 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.


FINDINGS OF FACT

1. There is credible evidence that a claimed in-service stressor occurred.  

2. The Veteran does not have PTSD. 

3.  A mental disability for which service connection can be granted was not manifested during the Veteran's active duty service or for many years thereafter, nor is a mental disability otherwise causally related to such service.



CONCLUSION OF LAW

A mental disability, including PTSD, was not incurred in or aggravated by the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Duty to Notify

After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought.  In a letter sent in April 2009, the claimant was informed of the information and evidence necessary to warrant entitlement to service connection.  Moreover, in the letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). 

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the instant case, the April 2009 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. 

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency in the course of his appeal.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Duty to Assist

The Board finds that there has also been compliance with the assistance provisions set forth in the law and regulations with respect to the claims on appeal.  The Veteran's service treatment records (STRs) are associated with the claims file.  All available pertinent records, in-service and VA, have been obtained.  The Veteran was afforded an adequate VA PTSD examination in February 2010.  38 C.F.R. § 3.159(c)(4).  

VA treatment records located in VA's Virtual VA indicate that the Veteran receives Social Security Administration (SSA) benefits due to the death of his wife.  While the decision awarding such benefits is not currently of record, the Board has determined that such decision is not relevant to the claims on appeal, and therefore such decision does not need to be obtained prior to the adjudication of these claims.  See 38 C.F.R. § 3.159(c)(2), Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010).

As will be discussed in further detail below, the Veteran has not established that he has been diagnosed with a mental disability, including PTSD, for which service connection can be granted.  In an October 2013 brief located in VA's Virtual, the Veteran's representative requested that the Veteran be afforded another PTSD examination to determine whether or not the Veteran's current symptoms meet the criteria of a PTSD diagnosis.  However, the Board finds the February 2010 examination was adequate.  It appears that the examiner elicited a history, conducted appropriate psychological testing, and performed a full clinical examination.  The examiner set forth the criteria for a diagnosis that were not met.. 

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claims, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein.

Analysis 

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury or disease that was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Generally, service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection for PTSD requires a medical diagnosis that conforms to the Diagnostic and Statistical Manual, 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).  

Where alcohol dependence is at issue, service connection is precluded in two circumstances: "1) for primary alcohol abuse disabilities; and 2) for secondary disabilities...that result from primary alcohol abuse."  By contrast, service connection is not precluded if alcohol dependence is secondary to a service-connected disability.  See Allen v. Principi, 237 F.3d 1368, 1376, 1378 (Fed. Cir. 2001).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

The Veteran contends that service connection is warranted for a mental disability, including PTSD.  He asserts that in-service stressors caused his PTSD.  The Board finds, however, that service connection for a mental disability, including PTSD, cannot be granted because the Veteran does not currently have a competent diagnosis of a mental disability, including PTSD, for which service connection can be granted.

The Veteran's personnel records indicate that he served in the Republic of Vietnam from January 1967 to December 1967.  The Veteran alleged he experienced traumatic events there.  In a May 2009 statement, he asserted that he helped cut a deceased service member from vehicle wreckage caused by an enemy attack in December 1967.  The U.S. Army and Joint Services Records Research Center (JSRRC) retrieved official military records that document the attack and casualty.  As such, the Board acknowledges that credible evidence supports the Veteran's claimed in-service stressor.  See Pentecost v. Principi, 16 Vet. App. 124 (2002).  

The VA afforded the Veteran a PTSD examination in February 2010.  After reviewing the case file and the Veteran's treatment records and extensively interviewing the Veteran, the examiner, a psychologist, diagnosed the Veteran with alcohol dependence and alcohol-induced mood disorder.  The examiner reasoned that the Veteran's alcohol abuse/dependence is his primary concern.  He noted that the Veteran's financial stressors are largely related to the alcohol abuse, which resumed after many years of reported sobriety after the Veteran's wife and close friend died.  He found that the Veteran does not meet multiple criteria needed to substantiate a PTSD diagnosis.  

The Board acknowledges the Veteran's assertions that he suffers from PTSD. The Veteran's lay testimony is competent to report his symptoms, but his own account of symptom complaints has been interpreted by the competent psychologist as failing to meet the DSM-IV criteria for a PTSD diagnosis.  The Veteran is not shown to be competent to establish a specialized diagnostic characterization of his psychiatric symptoms as PTSD rather than alcohol dependence or alcohol induced mood disorder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Board finds that the February 2010 VA examination report's conclusion is highly probative evidence indicating that the Veteran does not have a diagnosis of PTSD meeting the applicable DSM-IV criteria.  There is no probative evidence to the contrary showing a PTSD diagnosis during the pendency of this appeal meeting the DSM-IV criteria.  The medical evidence of record does not show a diagnoses of any mental disability, including PTSD, other than alcohol dependence or alcohol induced mood disorder.  In January 2006, the Veteran sought treatment for alcohol abuse at a VA treatment center, and a VA physician diagnosed him with alcohol dependence.  He sought treatment at the same VA treatment center in April 2008, June 2008 and March 2012.  His diagnoses were alcohol abuse and alcohol dependence.

With regard to the Veteran's alcohol dependence and alcohol induced mood disorder, he has not alleged they are secondary to a service-connected disability.  As such, entitlement to service connection is precluded.  See Allen, 237 F.3d at. 1376.

In the absence of a current diagnosed disability for which service connection can be granted, service connection cannot be granted for such disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, the Board finds that the Veteran does not have a current mental disability, including PTSD, for which service connection can be granted.  Should the Veteran obtain a medical diagnosis of PTSD, he may always request that his claim be reopened.  

After reviewing the totality of the evidence, the Board finds the preponderance of the evidence is against service connection for a mental disability, including PTSD.   


ORDER

Service connection for a mental disability, including PTSD, is not warranted.  To this extent, the appeal is denied.


REMAND

The RO scheduled the Veteran for a VA audiological examination in 2012 to determine whether he currently experiences hearing loss in the right ear as well as the etiology of his current hearing loss and tinnitus.   The Veteran cancelled the appointment on July 2, 2012, and did not reschedule.  In his August 2012 substantive appeal, the Veteran asserted he had another, more important appointment at a separate VA treatment center the same day, following a recent surgery.  The Board cannot confirm the date that the audiological examination was scheduled for, but VA outpatient treatment records located in VA's Virtual VA indicate that the Veteran did have an appointment at a separate VA treatment center on July 11, 2012, just days after he cancelled the audiological examination.  The outpatient treatment note reports that the Veteran had recently undergone surgery for an aortic aneurysm.  The Veteran is competent to report these appointments were scheduled for the same day, and the Board finds his assertion credible.  Furthermore, the Board finds this scheduling conflict constituted good cause for the Veteran's failure to report for the VA audiological examination.  See 38 C.F.R. § 3.655(a).  Accordingly, remand for an adequate VA audiological examination is necessary.    


Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be scheduled for a VA audiological examination to determine the nature and etiology of the Veteran's hearing loss and tinnitus.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  Examination results should be clearly reported.  

The examiner is requested to respond to the following:

(a)  Is it at least as likely as not (a 50% or higher degree of probability) that Veteran's hearing loss is causally related his active duty service?  It is requested that the examiner consider whether there is a medically sound basis to attribute hearing loss that manifested after the Veteran's service separation examination to his conceded in-service noise exposure. 

(b)  Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's tinnitus is causally related to in-service noise exposure?  
	
Detailed reasons for all opinions should be provided.  It is requested that the examiner's responses be in the same language as used in the above sub-paragraphs (a) and (b) ("at least as likely as not").

2.  For the purpose of avoiding further remand, the RO should review the examination report/opinion to ensure that it is responsive to the above directives.  If not, the RO should return the report/opinion to the examiner for an addendum.

3.  After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus.  The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review. 
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).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs