Citation Nr: 1437726	
Decision Date: 08/25/14    Archive Date: 09/03/14

DOCKET NO.  11-13 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a low back disorder.

2.  Entitlement to service connection for hepatitis C.  

3.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 

4.  Entitlement to service connection for coronary artery disease (CAD), claimed as secondary to a psychiatric disorder.  

5.  Entitlement to service connection for hypertension, claimed as secondary to a psychiatric disorder.  

6.  Entitlement to an initial compensable evaluation for bilateral hearing loss.  




REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from January 1970 to December 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in 2009 and 2011 by Department of Veterans Affairs (VA) Regional Offices (RO).  

With regard to the claim certified as service connection for PTSD, the Board takes notice of the Veteran's various statements, including his Board hearing testimony and a December 2008 stressor statement, in which he described anxiety and depression as a result of service.  In light of these considerations, the Board has recharacterized the claim of service connection for PTSD to more accurately reflect the broad scope of the Veteran's intentions.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in March 2013.  A transcript of the hearing has been associated with the claims file.  

The issues of (1) service connection for a psychiatric disorder; (2) service connection for CAD; (3) service connection for hypertension; and (4) an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran experienced back pain during service and is currently diagnosed with intervertebral disc syndrome with degenerative arthritis, but the credible and most probative evidence tends to make it more likely than not that the current disability is not related to the in-service back pain, and there is no credible evidence of chronicity or continuity after service.  

2.  The evidentiary record makes it more likely than not that the Veteran does not have hepatitis C.  


CONCLUSIONS OF LAW

1.  The criteria to establish service connection for a low back disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

2.  The criteria to establish service connection for hepatitis C have not been met.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA) 
Duties to Notify and Assist

A. Duty to Notify

VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Here, the Veteran was sent comprehensive letters in February 2008 (regarding hepatitis) and July 2010 (regarding the low back), which were sent prior to the respective January 2009 and February 2011 rating decisions on appeal.  Any defect in the notice is deemed not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, the duty is satisfied.

B. Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d).  VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

1. Duty to Obtain Records

VA has met its duty to reasonably assist the Veteran in the development of the claims being decided herein because his service treatment records have been obtained and appear to be complete.  The Veteran did not indicate that he received private (non-VA) treatment for hepatitis or his low back.  Furthermore, he wrote in a December 2008 statement that he retired from work after meeting the required years, but he clarified that he did not receive disability benefits from the Social Security Administration (SSA).  

He testified at his Board hearing that he first sought treatment for his low back at VA in 2004.  Board Hr'g Tr. 14.  The record on appeal includes VA treatment records beginning from May 2007, including an "initial md appt" in July 2007 and a problem list identifying treatment only from May 2007.  Therefore, it is unclear if the Veteran had prior treatment at VA.  In either event, although the Board is remanding other claims with instructions to attempt to obtain those VA treatment records, it is not necessary to attempt to obtain those records for the claims decided herein.  While it is not impossible that those VA treatment records might provide some evidence favorable to these claims, the Board finds that such a possibility is remote.  

At the hearing, he was asked:

Q.  Okay and when is the first time after service that you were looking for treatment for your back? Is that also in 2004?  

A. Yeah, when I started going to the VA clinic, I started telling them about it, and we started -- they started looking at me and taking care of me.  

Board Hr'g Tr. 15.  This testimony tends to reasonably indicate only that those records would inform the question of whether he has had ongoing symptoms since 2004, which is not materially in dispute in this case.  The central question in dispute is whether his ongoing symptoms are related to treatment shown during service (i.e., the nexus element).  His generalized statements do not give the Board reason to believe the VA treatment records from 2004 might contain pertinent information regarding the nexus question.  

In other words, the Board finds that it is not reasonable to attempt to obtain those VA treatment records because there is no indication that they would have a reasonable possibility of helping to substantiate the claim; attempting to obtain them would be for the sole purpose of determining whether they are relevant, which is not necessary.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) ("It is not the case that the government must obtain records in every case in order to rule out their relevance.")

2. Duty to Provide Examination/Opinion

The Veteran has undergone VA examinations in connection with the claims decided herein in December 2008 and October 2010 (including a January 2011 addendum).  The Board finds that those examinations are adequate to decide the appeal.  The examiners reviewed the claims file, including the service treatment records, examined the Veteran and reported relevant clinical findings, and provided medical findings directly pertinent to the instant matter.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2002).  The evidence of record is adequate to fully resolve the matter.  See 38 C.F.R. § 3.159(c)(4) (2013).  

3. Bryant notice

As noted above, VA provided the Veteran with a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the hearing, the undersigned fully explained the issue involved.  See Board Hr'g Tr. 3.  The undersigned and the Veteran's counsel also explored the question of whether additional evidence favorable to the appeal remained outstanding.  See, e.g., Board Hr'g Tr. 16.  The Board concludes it met all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant.

For the above reasons, the Board finds the duties to notify and assist have been met, and it may consider these claims at this time. 
  


II.  Analysis

A.  Applicable Law

Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013).  Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ('nexus') between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2013).  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2013).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker, 708 F.3d at 1337.

In making all determinations, the Board must fully weigh the credibility and probative value of lay evidence against the remaining evidence of record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); See Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011).  A lay person is competent to report on the onset and continuity of his symptomatology.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 433 n.4.  

A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  However, in making its ultimate determination, the Board will give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

A. Discussion

1.  Low Back

The Veteran maintains that he first injured his back during service while lifting ammunition canisters that weighed approximately 120 pounds each.  Board Hr'g Tr. 14.   He did not seek treatment after service until 2004, but the problem had continued after service.  Board Hr'g Tr. 14.

After careful consideration of the relevant evidence, the Board finds that there is a current diagnosis and a confirmed in-service injury, but no credible nexus to service.  

(a) Existence of a Present Disability

First, the record on appeal establishes a current diagnosis.  Specifically, a VA examiner in October 2010 confirmed a diagnosis of intervertebral disc syndrome with degenerative arthritis.  Therefore, the first requirement to establish service connection, evidence of a current disability, has been met as to this claim.  See Walker, 708 F.3d at 1337.

(b) In-Service Incurrence

Next, the evidence of record makes it likely that the Veteran suffered a back injury during service.  

At his induction physical examination in April 1969, the Veteran endorsed a history of recurrent back pain.  The service induction examination showed a "normal" clinical evaluation of the spine.  However, the examiner noted a history of "back ache when bending over for long (e.g., bending over a wash bowl) [and] has trouble straightening up at times."  The summary of defects includes "claims back pain."  

This notation of pre-service back pain at service entrance is insufficient evidence that a low back disorder preexisted the Veteran's service.  See 38 U.S.C.A. § 1111 (West 2002); Paulson v. Brown, 7 Vet. App. 466 (1995).  The Board cannot otherwise identify clear and unmistakable evidence that a low back disorder preexisted service.  The Board finds particularly important that the clinical evaluation conducted at service entrance took into account his complaints of prior back pain, but resulted in a finding that the back was "normal.  The record on appeal includes no further indication that a low back disorder existed prior to service.  

Accordingly, the Veteran is presumed sound condition, and the in-service incurrence element may not be satisfied through operation of the presumption of sound condition.  See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).
 
This finding is ultimately immaterial, however, because the remaining STRs establish the in-service incurrence element.  

Specifically, the STRs show that the Veteran was treated twice in April 1970 for back pain.  (The handwritten treatment records are nearly unreadable as to the specific details of this treatment.)  X-rays were then taken in June 1970, and they showed "Normal" lumbosacral spine.  He again sought treatment twice in June 1970 and twice in July 1970, including for "Back pains, Right side hurts."  

The Veteran also submitted evidence in March 2013 describing the M60 Series Tank (Patton Series).  It indicates that the ammunition was carried in "heavy bundles" which supports a conclusion that this tank used ammunition of a substantial weight.  

In light of the STRs, the second element of a service connection claim, in-service incurrence of a disease or injury, is established.  See Walker, 708 F.3d at 1337.

(3) Nexus

In light of the above two findings, the central question remaining in this case concerns whether the Veteran's current low back condition is a result of the events during service.

Chronicity

The current diagnosis of degenerative arthritis is reasonably consistent with "arthritis," which is a chronic disease listed in 3.309(a).  However, this condition was not established during service as chronic, and the fact of chronicity during service is not otherwise supported.  38 C.F.R. § 3.303(b).  To the contrary, the STRs include X-rays affirmatively demonstrating "Normal" lumbosacral spine.  Moreover, the November 1971 separation examination shows "normal" clinical evaluation of the spine.  Accordingly, the evidence does not support a finding of chronicity during service.  

Continuity

The most credible and competent evidence of record also makes it unlikely that there was a continuity of symptomatology after service.  

The Veteran testified at this Board hearing that he had ongoing back problems after service.  There is no intervening evidence between the Veteran's separation from service in December 1971 and the confirmed diagnosis in 2010.  This absence of evidence is immaterial in this case because it neither confirms nor rebuts the Veteran's allegations.  See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012) (quoting Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011)) (an absence of evidence may generally not be considered substantive negative evidence).  

Nonetheless, the STRs directly contradict the Veteran's testimony.  Specifically, the November 1971 service separation examination notes a "normal" spine at that time.  By its very nature (as indicated by the questions posed to the examiner), the service separation examination was intended to be a comprehensive accounting of the Veteran's past and contemporaneous medical condition.  It is therefore expected that any abnormalities involving the low back would have been documented by the examiner during the clinical evaluation in some manner if found in the course of such a regularly conducted activity.  However, the examiner's finding that the Veteran had a "normal" spine is affirmative evidence that no abnormality existed at that time.  See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7).  Accordingly, the accuracy of the Veteran's account of ongoing back pain after service is called into question.  

The Veteran sought treatment at VA in March 2010 for complaints of chronic low back pain since 1970 during service.  Conflicting with this history, on VA evaluation in May 2008 for symptoms in his lower extremities, the Veteran denied back pain and back trauma.  With this in mind, this May 2008 VA treatment record is significant as it affirmatively contradicts his current statements that he had continual back pain after service.  In other words, based on the context of this May 2008 treatment record, it is more reasonable to assume that had he been having back pain since his service, he would have reported it in some manner.  Because he did not, this VA treatment record tends to increase the likelihood that he was not having continuous back pain since service.  He gave a similar history in October 2010 to a VA examiner, which further indicates that it was not his belief at that time that his symptoms had been ongoing since service.   

The record on appeal includes other evidence undermining the credibility of his assertions.  Most notably, the Veteran has demonstrably misrepresented a history of substance abuse.  For instance, on VA cardiac evaluation in December 2007, he denied a history of drug abuse.  Likewise, during a neurology consultation in May 2008, the Veteran "denies drugs."  However, on separate VA psychiatric consultation in May 2008, the Veteran gave a history of "cocaine once per week," which he had "never told [to] anyone."  On follow-up later in May 2008, he gave a history of cocaine use three times per week for approximately 30 years.

These conflicting statements about his substance abuse do not directly rebut the Veteran's assertions that he has had ongoing low back pain beginning from service.  However, the inconsistency tends to increase the likelihood that he is not a reliable historian, which makes it appear more likely that he is disregarding the accuracy of his statements in order to present his case in a light more favorable to the outcome of this appeal.  

In short, the Veteran gives a history of continuous low back pain beginning from service.  This is the only evidence supporting a finding of continuity, but his statements are noncredible.  Accordingly, the Board finds that it is unlikely that he has had continuity of symptomatology since service.  38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336.  Correspondingly, the Veteran's noncredible testimony makes it unlikely that low back condition was manifested to a compensable degree within one year of separation from service.  See 38 C.F.R. § 3.307(a)(3).  

Post-Service Diagnosis

With regard to whether the Veteran's current low back disorder may nonetheless be related to the treatment during service, the record before the Board contains some conflicting evidence.  

Favorable to the claim, the Veteran sought treatment at VA in March 2010 for complaints of chronic low back pain since 1970 during service.  The diagnosis was chronic low back pain.  

This opinion might constitute favorable evidence of a nexus.  However, it has no evidentiary value.  First, the assessment is made on the basis of the Veteran's own allegations that he had chronic low back pain since service.  Because his assertions are not credible evidence of such, this opinion is based on an inaccurate factual foundation.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Second, the doctor did not explain the medical rationale underpinning the nexus.  An unexplained conclusory opinion, such as this one, is entitled to no weight in a service-connection context.  See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012).  

The Veteran himself has also stated his belief that his current low back disorder is related to his back pain during service.  Again, the Board is unable to rely on his opinion because it is supported only by his own noncredible assertions of ongoing back pain since service.  More importantly in this context, the Veteran's lay testimony is not competent to relate his current low back disorder to his in-service complaints.    Even assuming the credibility of his lay statements, the similarities between the current symptoms and those he experienced in-service may be relevant to an expert considering potential causes of the Veteran's current condition; however, lay observation of this similarity alone is not competent evidence of causation.  To the contrary, based upon the nature of the low back condition involved, the amount of time that elapsed after service before it credibly manifested, the issue of whether his specific condition is related to those complaints during service is too complex to be with in the common knowledge of a non-expert such as the Veteran.  Lay observation of the similarities between his current symptoms and those he experienced in service is not competent evidence of causation.  See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007).  

Unfavorable to his claim, the Veteran underwent a VA examination in October 2010.  The examiner did not offer an opinion at that time.  However, in a January 2011 report, this same examiner again reviewed the matter and concluded that the current diagnosed disorder is "less likely than not or very unlikely, that his back pain complained of in 1970 is the same as the condition that was recently found by [the examiner] during a routine evaluation for his back condition.  

The Board finds that this opinion carries the greatest evidentiary value when viewed in the context of the record on appeal as a whole.  First, the VA examiner accurately and comprehensively reviewed the pertinent facts of the case, including the STRs showing complaints of preexisting back pain and treatment during service.  Second, the VA examiner gave a clear, unequivocal opinion, and he then offered a compelling rationale for the opinion.  The VA examiner reasoned that the current disorder can:

in no way attempt to associated [sic] his present condition to his past complain of law back pain at the time of his service in 1970 when he was seen during his active duty tour.  The reviewed medical records do no [sic] reflect any incident of any actual trauma and the complaint was localized to his lower back and mostly on the right side suggestive of possible lower back pain muscle strain.  Additionally, there is a lumbosacrine [sic] spine X-ray report taken [in June 1970] and this was read as NORMAL, meaning that at that time, there was no spondylosis or any degenerative changes noted which are against his having sustained any actual injury at the time of he was seen [sic] for the 'back pain.'  Those changes are of a more recent nature and hardly likely to be due to the event that he complain about [sic] almost 40 years ago.  Also the fact that during his recent past exam, there were changes in the lower back as well as in the cervical spine are more consistent with chronic multilevel degenerative changes that have occurred over time in a person/man who has aged more than 40 years after he had the episode of back pain while he was in the Army. 

Notwithstanding the numerous typographical errors in this opinion, the VA examiner's rationale is clear.  Notably, the VA examiner identified the types of factors that might have indicated that the current disorder may be due to service, but explained why the absence of those factors is medically significant in the Veteran's case.  This opinion is found particularly strong evidence because it is comprehensive, factually accurate, and well-reasoned.  See Nieves-Rodriguez, 22 Vet. App. at 304.  Accordingly, it tends to greatly increase the likelihood that the Veteran's current low back disorder is not related to service in any manner or on any basis.  

Overall, the evidentiary record contains some evidence supporting the claim.  However, the credible and most probative evidence tends to establish that it is unlikely that the current low back disorder is due to any event or injury during his active duty service.  Accordingly, the evidentiary record does not raise a reasonable doubt to be resolved in the Veteran's favor on the material issue in dispute-the nexus element.  Therefore, the claim must be denied.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287.

2.  Hepatitis C

The Veteran maintains that he currently has hepatitis C due to drinking contaminated river water during service.  Board Hr'g Tr. 3.  

The STRs contain a notation indicating that the Veteran was hospitalized in May 1970 for hepatitis.  On a medical history questionnaire completed in November 1970 for dental treatment, the Veteran endorsed a history of jaundice or hepatitis.  A dental examination conducted in April 1971 also notes a history of hepatitis.  

However, he underwent a VA examination in connection with his instant claim in November 2008.  The VA examiner gave the results of all diagnostic and clinical tests, which were "negative."  

The Veteran has not otherwise indicated that he has residuals of the hepatitis treated during service.   Accordingly, the evidentiary record tends to make it more likely that he does not have a current disability upon which a grant of service connection can be based.  See Brammer, 3 Vet. App. at 225; Romanowsky, 26 Vet. App. at 293; McClain, 21 Vet. App. at 321.  The evidentiary record does not raise a reasonable doubt to be resolved in the Veteran's favor on the material issue in dispute-the presence of a current disability.  Therefore, the claim must be denied.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287.


ORDER

Service connection for a low back disorder is denied.

Service connection for hepatitis C is denied.  


REMAND

A.  PTSD

The Veteran maintains that he suffers from a psychiatric disorder due to witnessing a tank turret cut a crew member "in half."  Board Hr'g Tr. 4-5.  

As a threshold matter, the Board notes that the Veteran's February 2009 NOD refers to this stressor as a "personal trauma."  However, the nature of the stressor described is not consistent with a personal assault.  Accordingly, it is not reasonable to apply the special criteria regarding claims of PTSD due to personal assault based on the evidentiary record now before the Board.  See 38 C.F.R. § 3.304(f)(5) (2013).  

(1)  Stressor Development

The Veteran wrote in his February 2009 notice of disagreement (NOD) that the claimed stressor occurred between June 1970 and September 1970, but he clarified "I don't quite remember the month."  Consistent with his statement, the RO researched whether any deaths occurred at Ft. Knox (where he was stationed at the time of the alleged stressor) during this time period.  The results did not corroborate the Veteran's statements.  

More recently, however, the Veteran testified at his March 2013 Board hearing that the event may have happened in January or February 1971, (when he was at Ft. Knox).  This time period has not been researched.  Accordingly, upon remand, the RO should attempt to verify the alleged event during this later time period.    

(2)  Missing Records

The Veteran testified at his Board hearing that he went without any medical help until 2004, when he presented to McAllen VA Outpatient Clinic in McAllen, Texas.  Board Hr'g Tr. 10, 12.  Currently, the record on appeal contains VA treatment records beginning in May 2007, not 2004.  The records from 2004, if they exist, might be relevant to the material issues in dispute in this case.  As such, they should be obtained, if any.  

(3)   VA Examination

The Veteran should also be afforded a VA examination.  The medical records currently before the Board show diagnoses of cocaine abuse, alcohol abuse, and adjustment disorder with depressed and anxious mood.  There is no indication that a diagnosis of PTSD has been made.  Yet, there is some indication that the current symptomatology may have been ongoing for many years.  The Veteran admitted during VA treatment in May 2008 that he had a history of substance abuse for approximately 30 years, which would have been several years after service.  Similarly, the Veteran's wife testified that she first became aware of his psychiatric symptoms around 1978, when they first started having children.  Board Hr'g Tr. 8.  She also wrote in in a December 2008 statement that she did not notice his problems until "years" after service, except for an exaggerated "startleness."  This latter statement indicates that the Veteran's current symptomatology may have emerged proximate in time to service.  She further testified at the Board hearing that the Veteran's (service-connected) bilateral hearing loss affects his psychiatric condition.  Board Hr'g Tr. 2.  

For purposes of this remand only, the Board will accept that the assertions of the Veteran and his wife may indicate a nexus to service or a service-connected disability.  Accordingly, a VA examination should be arranged.  

B.  CAD/Hypertension

The Veteran maintains that he has CAD and hypertension secondary to his psychiatric condition.  Because the Board is remanding the psychiatric claim, the claims of service connection for CAD and hypertension are intertwined, which prevents resolution of the claims at this time.  

Aside from this, the record on appeal also discloses missing records pertinent to both of these disorders.  First, a July 2007 VA treatment record reflects that he had private (non-VA) treatment for hypertension "last y[ea]r."  Next, VA treatment records beginning in December 2007 show that he had emergency treatment at Rio Grande Regional Hospital for a cardiac emergency that same month.  These treatment records have not been obtained.  Because they are potentially relevant, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf.  





C.  BHL

The Veteran testified at his March 2008 Board hearing that his bilateral hearing loss had worsened since last examined in November 2008.  Because the record is otherwise inadequate to resolve the appeal, the Board will remand this claim to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his hearing loss.  See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995).

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claims.   The letter should request that he complete an Authorization and Consent to Release Information (Release) for all identified records.  He should be specifically asked to identify:
(a) Treatment for hypertension from his private doctor;
(b) Emergency treatment at Rio Grande Regional Hospital in December 2007.  

2.  If the Veteran responds to the letter sent pursuant to paragraph 1, undertake reasonable efforts to obtain all relevant pertinent records identified, if not already associated with the claims file.  

All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow-up request for the records would be futile).  

If the Veteran does not provide any necessary Release, request that he obtain the records and provide them to VA.  

3.  Obtain all of the Veteran's VA treatment records not already associated with the claims file.  This should include any records from McAllen VA Outpatient Clinic in McAllen, Texas, beginning from 2004.  

Then, continue associating VA treatment records to the claims file on an ongoing basis until the case is recertified to the Board.  

4.  Contact the appropriate service department and/or records custodian(s) to attempt to determine if a tank crew member was killed in January 1971 or February 1971 under the circumstances described by the Veteran.  

As many requests as are necessary must be made to attempt to verify this event.  Such efforts must end only if it is concluded that the records sought do not exist or that further efforts to verify the event would be futile, such as if the service department or record custodian advises that the relevant records do not exist or the event cannot be verified.

5.  All attempts to fulfill the preliminary development specified in paragraph 1-4 above must be documented in the claims file.  

If, after making all reasonably attempts (as specified) to obtain these records it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should send notice to the Veteran, as directed by 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim(s), including, but not limited to, notice that VA will decide the claim(s) based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. 

The Veteran must be also notified that he is always allowed to provide such records himself, notwithstanding VA's inability to obtain the records.  

6.  After completing the requested development in paragraphs 1-5 above, arrange for the Veteran to undergo an appropriate VA mental health examination(s).

Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies.  Then, based on the record review and examination results, the examiner is requested to separately address each of the following questions:

(a) Provide a current diagnosis for any psychiatric disorder(s) found extant.  

(b) If a diagnosis of PTSD is made, provide an opinion as to whether it is at least as likely as not (i.e., equally probable) that PTSD is due to an in-service stressor.  The examiner should identify the specific in-service stressor(s) supporting the PTSD diagnosis.  

(c) If a diagnosis other than PTSD is made, provide an opinion as to whether it is at least as likely as not (i.e., equally probable) that the disorder(s) had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any disease or injury of his active service.  

(d) Notwithstanding your answers to questions (b) and (c), please provide an opinion as to whether it is at least as likely as not (i.e., equally probable) that a current psychiatric condition is proximately due to, the result of, or caused by a service-connected disability, particularly tinnitus and/or hearing loss?

(e) Notwithstanding your answers to questions (b) to (d), please provide an opinion as to whether it is at least as likely as not (i.e., equally probable) that a current psychiatric condition has been aggravated (made permanently worse or increased in severity) by any service-connected disability, particularly tinnitus and/or hearing loss?  If yes, was that increase in severity due to the natural progress of the disease? 

In answering each question (a) to (e), please articulate the reasons underpinning your conclusions as to each question.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how those facts and information justify your opinion.

In doing so, please address whether there is any medical reason to believe that the Veteran's recollection of the in-service events and subsequent symptoms is inaccurate.  

A report of the examination should be prepared and associated with the Veteran's VA claims file.

7.  After completing the requested development in paragraph 3 above, arrange for the Veteran to undergo a VA examination to evaluate the nature and severity of his bilateral hearing loss.

The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to provide an assessment of the current frequency, severity, and duration of the Veteran's hearing impairment.  

In doing so, the examiner is asked to describe the functional impairment caused by his hearing in his daily life and on his ability to meet the demands of a job, whether sedentary or physical.  

For all findings, the examiner is asked to identify, to the extent possible, the date on which the degree of any impairment first occurred.

Please justify all opinions by explaining the medical reasons underpinning those conclusions.

8.  After completing all action set forth in paragraphs 1-7, undertake any further action needed as a consequence of the development completed in those directives, including any further VA examinations needed, particularly as it concerns the claimed CAD and hypertension.  

Then, readjudicate the remanded matters with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board.

The Veteran 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 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).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs