Citation Nr: 1615585 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 12-28 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from January 1987 to April 1990. These matters originally came before the Board on appeal from September 2011 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a February 2015 decision, the Board denied service connection for bilateral hearing loss, tinnitus, a bilateral knee disability, and a low back disability. The psychiatric disorder claim was remanded for further development. As the requested development has been completed, the psychiatric disorder claim has been returned for further appellate action. The Veteran appealed the February 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the September 2015 joint motion for partial remand (JMPR), the Court vacated the February 2015 Board decision relevant to the bilateral hearing loss, tinnitus, and low back disability claims and remanded the matters for compliance with the terms of the JMPR. Notably, the parties moved the Court not to disturb the determination with regards to the bilateral knee disability. In light of the evidence of record, the Board has recharacterized the psychiatric claim as a claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The psychiatric disorder issue is decided below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1 A current diagnosis of PTSD is not shown. 2. Depression or any psychiatric disorder other than PTSD, was not manifested in service, did not manifest within one year of service discharge; and is not shown to be otherwise causally or etiologically related to service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD and depression, is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2015); 38 C.F.R § 3.303, 3.304, 3.307, 3.309, 4.125 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements 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, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA's duty to notify was satisfied by way of June 2011 and April 2012 letters that were sent prior to the initial RO decisions in these matters. The letters informed the Veteran of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements have been satisfied as to both timing and content as to the Veteran's claims. The letters also provided notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). VA also has a duty to assist the Veteran in the development of his claims. The record reflects that VA has made reasonable efforts to obtain all relevant records adequately identified by the Veteran including service treatment records and post-service treatment records. The Board finds that VA's duty to provide the Veteran with an examination for his claims has not been triggered. Specifically, the Veteran contends that his disabilities are due to his service, but there is no competent probative evidence that the disabilities may be related to service. Indeed, the post service treatment records indicate that the Veteran's current depression is related to personal stress, to include his current job. The only evidence supporting the contention is the Veteran's statements. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); see also 38 C.F.R. § 3.159(c)(4)(i). The Board also finds that there was substantial compliance with the February 2015 Board remand directives. Specifically as directed, the AOJ obtained copies of pertinent clinical records from Millwood Hospital. The AOJ attempted to obtain treatment records from St. Anthony Hospital, however, a negative response was received from the hospital. Finally, the matter was readjudicated in a March 2016 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. B. Legal Criteria, Factual Background, and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A§ 1131; 38 C.F.R. §§ 3.303, 3.304. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R§ 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R§ 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R§ 3.304(f). In making all determinations, the Board must fully consider the lay assertions of record. A lay person is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran's service treatment records to include entrance and discharge examination reports are silent for any psychiatric disorders, to include PTSD. On March 1990 discharge examination report, there was no complaint of depression or excessive worry, or nervous trouble of any sort. The examiner did make note that the Veteran attended alcohol abuse rehabilitation in November 1988 with subsequent relapse in October 1989. He noted that the Veteran was currently on Antabuse. Post service treatment records, to include VA records dated August 2005 and Millwood Hospital records dated October 2004 show diagnoses of depression as related to his current employment. Indeed, an October 2004 psychological/risk assessment from Millwood hospital documents that the Veteran believed that his employer was out to get him because he exercised his rights as a union member. During an August 2005 VA outpatient visit, the examiner noted that the Veteran had a positive depression screen. The Veteran reported that he has problems with employment and creditors. He indicated that he had not worked from November 2004 until July 2005. The Veteran reported that he was sober from alcohol for 4 years, but had a nervous breakdown, several months prior and drank some alcohol. The Veteran reported that he did not seek treatment, but had not had any alcohol since. There is no additional pertinent medical evidence. As referenced above, the threshold criteria for establishing service connection for any disability, to include PTSD, is evidence of a current diagnosis of the claimed condition. The Board notes, however, in the instant case, the evidence fails to reflect that the Veteran has or has had PTSD during the pendency of this appeal. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent evidence of a current disability, there can be no valid claim). The question then turns to whether the Veteran has an acquired psychiatric disorder, other than PTSD, that was incurred in or aggravated by service. In this regard, the evidence shows that the Veteran carries a diagnosis of depression. See October 2004 private treatment records from Millwood Hospital, as well as August 2005 VA treatment record. There is an indication that the Veteran was treated for alcohol abuse during service, however, there is no evidence that the Veteran was treated for depression in service, and the Veteran has not contended such, in fact he explicitly denied depression or excessive worry, or nervous trouble of any sort. Moreover, following service, there is no clinical evidence of any treatment or other psychiatric complaints until 2004, when the Veteran was diagnosed with depression that appears to be related to personal issues. Further, there is no indication that the Veteran was diagnosed with a psychosis within the first year post service discharge. There are no competent opinions of record indicating that the Veteran's depression is related to service. Whether the Veteran has a psychiatric disorder caused or aggravated by his active service is a complex medical question beyond the capabilities of lay observation. See Jandreau v. Nicholson, 492 F.d 1372, 1376-77 (Fed. Cir. 2007). To the extent the Veteran appears to contend that his depression is related to his active service, his conclusory statements regarding the etiology of his psychiatric disorder are afforded no probative value. Lastly, the Board acknowledges that the Veteran was treated for alcohol abuse during his active service. However, any diagnosis of alcohol abuse does not provide a basis for an award of benefits since such falls outside the category of diseases for which service connection may be established. 38 U.S.C.A. § 105, 1131. Moreover, there is no competent evidence of record indicating, or even suggesting, that the Veteran's alcohol abuse during active service is in any way related to his current diagnosis of depression. In sum, based on the totality of the record, the evidence weighing against the claim carries far more probative value than the evidence in favor of the claim. For these reasons, the preponderance of the evidence is against the claim and service connection for a psychiatric disorder, to include PTSD and depression is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for an acquired psychiatric disorder, to include depression and PTSD, is denied. REMAND In the JMPR it was determined that the Board had not adequately addressed why VA examinations were not warranted for bilateral hearing loss, tinnitus, and a low back disability. The Veteran contends that all these disabilities began in service and have continued since service. He indicates that his bilateral hearing loss and tinnitus is a result of noise exposure on the ship. The Board conceded noise exposure in its February 2015 decision. Service treatment records are silent with regards to bilateral hearing loss and tinnitus. The Board notes, however, the Veteran, as a layperson is competent to report observable symptoms such as a decrease in hearing and ringing in the ears. Duenas v. Principi, 18 Vet. App. 512 (2004); Charles v. Principi, 16 Vet. App. 370 (2002). Further, with regards to his low back disability, the Veteran contends that his low back disability is a result of lifting and carrying heavy loads on the ship and by being lifted into the air and slammed down to the floor when the ship was in rough waters. On the March 1990 discharge examination, the Veteran reported recurrent back pain. Post service VA treatment records document the Veteran's complaints of low back pain. These are sufficient evidence to warrant examinations, since there is competent evidence of injury/incident in service, current symptoms of disability, and a report of symptoms since service that suggests a possible association to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, while on remand, the Veteran should be given an opportunity to identify any additional treatment records relevant to his bilateral hearing loss, tinnitus, and low back disabilities. Moreover, the Veteran's updated VA treatment records should be obtained to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Accordingly, the case is REMANDED for the following action: 1. Obtain from VA (and any associated facilities) any outstanding, pertinent records of evaluation and/or treatment of the Veteran relevant to his bilateral hearing loss, tinnitus, and low back disabilities dated from May 2011 forward. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information and, if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After obtaining any outstanding records and associating them with the electronic file, schedule the Veteran for a VA examination to determine the current nature and etiology of any claimed bilateral hearing loss and tinnitus. The record should be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should answer the following questions: (a) Does the Veteran have a current hearing loss disability as per VA criteria? (b) Does the Veteran have tinnitus? In so answering, the examiner should consider and address the Veteran's contentions. (c) If bilateral hearing loss and/or tinnitus is found, based on consideration of all pertinent medical and lay evidence (to include the Veteran's own assertions), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such diagnosed disabilities had its onset during service or is otherwise due to the Veteran's military service, to include conceded noise exposure on the ship. In formulating his or her opinion, the examiner should note that in-service noise exposure has been conceded. The examiner should consider all evidence of record, including medical records and lay statements. A complete rationale for all opinions should be provided. 5. After obtaining any outstanding records and associating them with the electronic file, schedule the Veteran for a VA examination to determine the current nature and etiology of any claimed low back disability. The record should be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should answer the following questions: (a) Does the Veteran have a current lumbar spine disability? In so answering, the examiner should consider and address, if appropriate, the Veteran's contentions that he experienced back pain in service. (b) With respect to any diagnosed disability, based on consideration of all pertinent medical and lay evidence (to include the Veteran's own assertions), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such diagnosed disability had its onset during service or is otherwise related to any in-service disease or injury, to include the recurrent back pain he reported during his March 1990 service separation examination. In formulating his or her opinion, the examiner should consider all evidence of record, including medical records and lay statements. A complete rationale for all opinions should be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs