Citation Nr: 1527955 Decision Date: 06/30/15 Archive Date: 07/09/15 DOCKET NO. 12-04 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2010, the Veteran submitted a formal claim for service connection for an acquired psychiatric disorder to include PTSD. In a June 2010 decision, the RO denied service connection for an acquired psychiatric disorder to include PTSD. That same month, the RO provided the Veteran with notice of the decision. However, a June 2010 VA record shows that the Veteran was homeless and the notice was returned the next month. In December 2010, the Veteran's attorney provided an updated address. It does not appear that the RO resent the notice to the updated address. In May 2011, the Veteran's attorney inquired as to the status of the psychiatric claim. Evidentially, the RO considered this as a petition to reopen the claim for service connection for a psychiatric disorder. As the evidence does not show that the Veteran received the June 2010 notice (and the VA had constructive knowledge of the new address), the Board will review the case on a de novo basis. In support of his claims, the Veteran testified at a hearing at the RO in May 2015 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The claim for service connection for an acquired psychiatric disorder is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was caused by his in-service noise exposure. 2. The Veteran's tinnitus was caused by his bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). In regard to element (1), current disability, a September 2014 post-service VA examination indicates diagnoses of bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.385. In regard to element (2), in-service incurrence, the Veteran contends he has current hearing loss, as well as tinnitus, due to noise exposure during his military service. He is capable of describing and reporting his noise exposure in service. Further, noise exposure is deemed consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). In regard to element (3), causal relationship, the record contains a September 2014 VA medical opinion which supports the claim, in that the VA examiner provided an opinion that the Veteran's hearing loss was related to his in-service acoustic trauma. As such, the Board finds that the third element is satisfied. The examiner also opined that the Veteran's tinnitus was related to his hearing loss. See 38 C.F.R. § 3.310. As all required elements have been satisfied, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND To establish service connection for PTSD, there must be a link established by medical evidence, between current symptoms and an in-service stressor. The DD-214 does not reflect that the Veteran experienced combat nor is it shown that he served during a time of war. The record contains a September 2014 VA examination report which contains a diagnosis of PTSD, however, this diagnosis was based upon the report of unverified stressors involving a helicopter crash, personal assault, and the learning of an injury to his brother who was stationed in Beirut. Further, the VA examination report indicates that the examiner did not review the Veteran's service treatment records (STRs) or his military personnel records (the Veterans Benefits Management System (VBMS) e-folders contain incorrect personnel records). In this regard, a June 2010 VA memorandum shows that the previous information provided by the Veteran pertaining to his claimed stressors was insufficient to send to the appropriate service agencies for verification. Since then, (at the September 2014 VA examination and May 2015 personal hearing) the Veteran provided additional details regarding his stressors. The RO should obtain the Veteran's service personnel records and attempt to verify his claimed stressors. At the May 2015 hearing, the Veteran's attorney reported that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since 2008. The Veteran also reported current treatment at the Brockton, Massachusetts VA facility and upcoming treatment at Baltimore VA hospital. These records should be requested, in addition to other VA and private treatment records as set forth below. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the private psychiatrist that diagnosed him as having ADHD in 1993. See VA examination report, dated September 10, 2014. 2. Make arrangements to obtain the Veteran's complete service personnel records. 3. Make arrangements to obtain the Veteran's complete VA treatment records from the following facilities: (a) West Palm Beach, for hospitalization from approximately January to February 2004. (b) Baltimore, from May 2015 forward. (c) Phoenix House, from January 1988 to December 1989. (d) Bedford, Boston, Jamaica Plain, Brockton, and Worcestor, dated from February 1986 to February 2000 and from January 2010 forward. (e) Providence and Middleton, dated from February 1986 to February 2000 and from January 2010 forward. (f) Unity House Transitional Housing Program, Montachusett Veterans Outeach Center, dated from November 2013 forward. 3. Obtain, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the 2008 claim. 3. Obtain the Veteran's personnel records. 4. Request that the Veteran provide detailed information concerning his reported stressors including, if possible, a 60-day period during which each reported stressor(s) occurred. The Veteran should be requested to provide some form of verification of his brother's injury in Beirut, and details about this experience as it relates that episode to being a stressor causing his PTSD. 5. Complete any development necessary to obtain evidence (including morning reports) to support that the Veteran's reported in-service stressors occurred, including a helicopter crash involving the death of private Feller and corporal Lynx in March 1984 in Pusan (Busan), Korea, while serving with the 2nd Battalion, 3rd Marines of the 5th Marines as well as details regarding his personal assault. 6. After completing the above development, schedule the Veteran for a VA psychiatric examination to determine whether an acquired psychiatric disorder to include PTSD and bipolar disorder, is related to service. Notify the examiner of the Veteran's confirmed stressors. Make the claims data consisting of Virtual VA/ VBMS documents available to the examiner for review of the case. The examiner should note that this case review took place. (a) Provide an opinion as to the nature and diagnosis(es) of the Veteran's psychiatric disability to include bipolar disorder, ADHD, and PTSD. (b) As to PTSD, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the Veteran has PTSD that is etiologically related to service, including as a result of any confirmed stressor. (c) Regarding any diagnosis other than PTSD, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the Veteran's diagnosed psychiatric disorder(s) other than PTSD is etiologically related to service. The examiner's attention is invited to the Veteran's report that service was stressful and that since service he has experienced mental problems and difficulty maintaining employment and personal relationships including multiple failed marriages. See e.g., May 2015 Board hearing transcript and September 2014 VA examination report. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that a lack of medical documentation in service alone is not sufficient to render lay evidence not credible. 7. Thereafter, readjudicate the claim on appeal and furnish the Veteran and his attorney a supplemental statement of the case if the matters are not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs