Citation Nr: 1422437	
Decision Date: 05/19/14    Archive Date: 05/29/14

DOCKET NO.  11-08 968	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for a head laceration with loss of consciousness.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connation for a respiratory disorder, claimed as pneumonia with residual bronchitis.

5.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder.

6.  Entitlement to service connection for coronary artery disease, to include as secondary to PTSD.  



REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

The Veteran served on active duty from October 1972 to October 1975.  This matter comes before the Board of Veterans' Appeals (Board) from February 2010, December 2010, and February 2011 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Denver, Colorado.
 
The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing via videoconference in February 2014.  An electronic copy of the transcript of that hearing in contained in the Veteran's Virtual VA file.

The Board also notes that there are records contained in the Virtual VA and Veterans' Benefits Management Systems.  Aside from the February 2014 hearing transcript, a review of the documents in those files reveals additional VA treatment records.  The remaining documents are either duplicative or irrelevant to the issue on appeal.  

The issues of service connection for a respiratory disorder, bilateral hearing loss, tinnitus, an acquired psychiatric disorder, and coronary artery disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not have a head injury with laceration that is due to service.  


CONCLUSION OF LAW

The criteria for service connection for a head injury with laceration are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in December 2009 and February 2010 that fully addressed all notice elements.

VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records (STRs), VA outpatient treatment records and private medical records.  The Veteran was not provided a VA medical examination and opinion to assess the current nature and etiology of his claimed head injury. However, VA need not conduct an examination with respect to this claim on appeal, because the evidence does not establish an in-service event and thus contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As further discussed below, the Board finds that the evidence of record does not establish an in-service event.

The Veteran also provided relevant testimony during the hearing before the undersigned in February 2014. The undersigned Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claim. The Board hearing discussion revealed any evidence that might be available that had not been submitted other than medical evidence that was to be procured. Bryant v. Shinseki, 23 Vet. App. 488 (2010).

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Merits of the claim

Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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).

In order to establish entitlement to service connection for any disability on a direct basis, the record must contain (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The Veteran contends that during service, he fell and hit his head causing a laceration to his head and a period of unconsciousness.  Specifically, he states that he was off duty, and they called general quarters. He stated that he was asleep at the time, I ran up the stairs, and hit the closed hatch which caused the laceration.  He reported that he did not seek medical treatment and did not get stitches but that he had a scar.

STRs are negative for a report of any such injury.  On his September 1975 report of medical history upon discharge from service, the Veteran specifically denied frequent or severe headaches and a head injury.  A contemporaneous clinical evaluation of his head was normal. 

Post service treatment records show no evidence of a head injury or laceration.  The Veteran did not report any symptomatology or treatment.  During the March 2014 Board hearing, the Veteran testified that he had headaches, loss of memory, and shakiness, but that he does not know if they are related to the alleged head injury.

The Board finds that service connection is not warranted for a head injury with laceration.  Other than the Veteran's statement, there is no evidence of a head injury during service.  In fact, upon discharge from service, the Veteran denied a head injury and headaches and a clinical examination was normal.  Although the Veteran is competent to provide lay evidence of his symptoms and of an in-service event, the Board finds that his contemporaneous statements, which directly conflict with his statements made during the course of his claim and were made closer in time to the alleged incident, render his current assertions less credible.  Accordingly, the Board assigns little or no probative value to the Veteran's current statements and significant weight to the statements made at service discharge.  

Therefore, the preponderance of the evidence is against finding of service connection.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Service connection for a head injury with laceration is denied.  


REMAND

The purpose of this remand is to afford the Veteran VA examinations.

With regard to the Veteran's claims for pneumonia with residual bronchitis, the Board has recharacterized the claim as entitlement to service connection for a respiratory disorder.  STRs show treatment for bronchitis, sore throat, and upper respiratory infections during service.  Upon entry into and discharge from service, the Veteran reported a chronic cough, shortness of breath, chronic colds, and ear, nose, or throat trouble.  Post service treatment records show the Veteran was diagnosed with emphysema and was treated for bronchitis.  A VA examination is necessary to determine if the Veteran has a chronic respiratory disorder that is related to his period of service.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).

With regard to his psychiatric disorders, the Veteran has claimed service connection for PTSD due to an in-service stressor.  He underwent a VA examination in November 2010 in which the examiner diagnosed depressive disorder but failed to provide an opinion as to whether this disorder is due to service.  Additionally, the examiner found that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD, as there was no evidence of avoidance symptoms.  However, in the Veteran's June 2013 mental health treatment records, he was diagnosed with PTSD and avoidance was noted in a mental status examination.  As the Veteran's claim of service connection for a psychiatric disorder encompasses all relevant diagnoses, a clarifying opinion is necessary to determine whether the Veteran's depression is due to service.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Additionally, a clarifying opinion is necessary to clarify whether the Veteran has a diagnosis of PTSD based on the more recently submitted evidence.  

Regarding the Veteran's claims of service connection for bilateral hearing loss and tinnitus, the Veteran underwent an examination in February 2010. However, the Veteran's responses at that examination were inaccurate and the examiner was unable to render an opinion.  In order to afford the Veteran another chance to provide accurate responses, the Board finds that a new VA examination is necessary.  

As the Veteran's claim of service connection for coronary artery disease is secondary to his PTSD claim, the Board finds the claims inextricably intertwined and remands it pending adjudication of the PTSD claim.  

Accordingly, the case is REMANDED for the following action:

1. The AOJ must provide the Veteran with an appropriate examination to determine the etiology of any respiratory disorders. The entire paper and electronic claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a respiratory disorder that was caused by or incurred during his military service. The examiner must specifically address the following:  1) the Veteran's lay statements; 2) the treatment contained in the Veteran's STRs, to include for bronchitis and upper respiratory infections; and 3) post-service diagnoses of emphysema and bronchitis. 

2. The AOJ must provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorders.  The entire paper and electronic claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that each currently diagnosed psychiatric disorder, including depression, was caused or aggravated by the Veteran's military service.  The examiner must specifically address the Veteran's assertions of an in-service stressful experience, to include his duties as a bugler at funerals. The examiner must also specifically address the depression and nervousness as noted on service entry and discharge reports of medical history and the Veteran's performance report noting a decrease in his performance over time.  

The examiner must also provide an opinion as to whether the Veteran meets the criteria for PTSD contained in DSM-IV.  If the examiner finds that the Veteran does not meet the criteria, then the examiner must comment upon the findings of PTSD in the Veteran's VA medical records. Additionally, the examiner should provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. 

3. The AOJ must also obtain an addendum opinion regarding the etiology of the Veteran's hearing loss and tinnitus from the February 2010 VA examiner or, if he is unavailable, to another suitably qualified VA examiner. An additional examination of the Veteran should be performed if deemed necessary by the person providing the opinion. The entire paper and electronic claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and an explanation provided for that conclusion.  

First, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus was caused or aggravated by military service.  The examiner must specifically address the Veteran's assertions of service on the flight line with intermittent hearing protection, and that tinnitus began in 1975.  The examiner must also specifically address the Veteran's STRs, to include notation of noise exposure from being in a band prior to service, and the February 2010 VA examination noting post-discharge noise exposure.

Second, the examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pre-existing hearing loss was aggravated by military service.  The examiner must specifically address the service entrance and discharge audiogram results, to include the presence of indications of hearing loss at discharge, despite not meeting the criteria for VA hearing loss. The examiner must also address the Veteran's lay assertions of service on the flight line with intermittent hearing protection, and that he noticed diminished hearing during service.  The examiner must also specifically address the Veteran's STRs, to include notation of noise exposure from being in a band prior to service, and the February 2010 VA examination noting post-discharge noise exposure.  The examiner must state whether the Veteran's hearing improved during service.  The examiner must also address any delayed or latent onset theory of causation and any threshold shift during service. 

4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.


The Veteran 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. 2013).



______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs