Citation Nr: 1619939 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 13-31 176A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Wirth, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, and a July 2013 rating decision issued by the RO in Montgomery, Alabama. The Veteran filed timely Substantive Appeals. In January 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he or she is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). With this in mind and in light of the Veteran's statements that he was diagnosed and treated for a nervous disorder shortly after he was discharged from service, the Board has reacharacterized the issue as stated on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Acquired Psychiatric Disorder, to include PTSD The Veteran alleges that while he was in basic training two men were killed at the grenade range, a drill instructor and a trainee. The men were in a foxhole and a grenade fell back in to the foxhole killing them. See February 2012 Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). He had to leave the area rapidly and was not given the names of the people killed. Since that time, the Veteran has been startled by sudden loud noises and often has dreams and flashbacks of that time. See July 2012 Statement in Support of Claim (VA Form 21-4138). Service treatment records are negative for any diagnoses or treatment for PTSD. A physician wrote on the Veteran's July 1969 pre-induction medical history that he was a "worrier;" however, he had a normal psychiatric examination. An April 1970 psychiatric screening in connection with the Veteran's deployment to Germany provides that the Veteran was psychiatrically screened and cleared, except that he reported he had trouble with nerves in basic training. The Veteran's March 1971 separation examination shows a normal psychiatric evaluation. In addition, the Veteran wrote on the form that he was in good health. The Veteran states that, when he came home from the military in 1971, he was diagnosed with a nerve disorder and was given tranquilizers. Because the physician he saw died in 1979, the Veteran has been unable to obtain any medical records relating to that treatment. See July 2012 VA Form 21-4138. In October 2012, VA received treatment records from V.D., M.D., a psychiatrist, which are difficult to read. A January 2012 record shows that the Veteran reported that he saw someone killed in basic training. He was having a recurrence of nightmares the last few days and sleep problems. The Veteran's mood was anxious. The diagnosis was history of PTSD. The Veteran was started on Zoloft. A February 2012 record shows that the Veteran reported that he felt much better and there was improvement in his sleep and nightmares. The diagnosis was again history of PTSD, delayed, with mild/transient symptoms. A May 2012 record shows the Veteran was sleeping well at night with no complaints. An October 2012 record shows the Veteran was doing well with no active PTSD symptoms. In October 2012, Dr. V.D. completed a Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (VA Form 21-0960P-3), which shows a diagnosis of PTSD, mild, delayed onset. However, all of the DSM criteria that must be met for a diagnosis of PTSD were crossed out and there was a notation to see the clinical notes. In July 2013, VA issued a formal finding of a lack of information required to corroborate the Veteran's alleged in-service stressor. In addition to there being no evidence of the alleged stressor in the Veteran's service treatment records and personnel file, the Joint Service Records Research Center (JSRRC) and Army Crime Records Center were unable to confirm the Veteran's alleged stressor. The August 2012 JSRRC response said it was unable to verify the incident because the Veteran did not provide the names of the soldiers involved. At his January 2016 Board hearing, the Veteran testified that his tinnitus and PTSD seem to be the same thing. He has abnormal heartbeats and palpitations that give him a lot of anxiety. As he has gotten older and stress comes, it gets worse. It is hard to get to sleep and he has a lot of dreams. A lot of times he jumps and falls out of bed. Hearing Transcript at 6. The Veteran testified further that his stressor occurred close to November in 1969 while he was in basic training. A drill instructor and trainee were killed when a grenade fell and blew up. The trainee was not in his company. The Veteran did not see anything that happened because it occurred behind a big concrete wall. A bus came and took him back to his company, but he was told what happened. The incident scared him "pretty bad." Id. at 7-8. At the hearing, the Veteran's representative submitted two-typed, identical buddy statements, which provide as follows: I ... was in basic training for the United States military services during the months of September thru November of 1969 along with [the Veteran] in Ft. Benning, Georgia. I do recall the incidence where there were two servicemen killed due to a grenade explosion during training at the grenade range. We were quickly ordered to go back to the barracks. The Board observes that the request to the U.S. Army Crime Records Center did not include the Veteran's unit information ("Company D, 10 Battalion, 1st Brigade" at Fort Benning, Georgia). Thus, it is unclear whether the absence of such information hindered attempts to verify the claimed stressor event. Accordingly, the Board finds that further efforts should be undertaken to verify the claimed stressor event. The Board also finds that a VA examination with medical opinion is needed to determine whether the Veteran has any current acquired psychiatric disorder that may be related to his service, including as due to aggravation of a preexisting anxiety disorder. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). The Veteran should be given the opportunity on remand to submit private treatment records or identify VA treatment to support his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(1) (2015). Tinnitus The Veteran seeks service connection for tinnitus. He alleges that he was "exposed to acoustical trauma" during service while repairing and driving heavy equipment and during artillery field exercises that were held at least once per quarter. See November 2010 Statement in Support of Claim (VA Form 21-4138). Personnel records show the Veteran was a wheel and track mechanic during his military service. Service treatment records are negative for any complaints, diagnoses, or treatment of tinnitus. At a January 2011 audiology examination, the Veteran reported that his tinnitus began while he was in the military. It was not present in the mornings, but ramped up during the day and was pulsatile at night. He noticed the tinnitus was worse when he was anxious. There was no history of ear disease or head or ear trauma. After service, the Veteran worked at a missile plant for five and a half years and at a rubber plant for 26 years. The audiologist noted that the Veteran was very nervous and anxious, but he denied that he had any problem with anxiety or had been diagnosed with any anxiety disorder. However, the Veteran exhibited fidgeting, rocking, and grimacing during the test. In addition, he stated that the tinnitus was worse when he finished the testing than it was when the testing began. The audiologist determined that the Veteran did not sustain hearing loss while in service. In addition, the audiologist commented that the Veteran's tinnitus could be related to his anxiety because of the Veteran's comment that he noticed his tinnitus was worse when he got "excited." The audiologist deferred providing an opinion concerning the etiology of the Veteran's tinnitus to an otolaryngologist (an ear, nose, and throat specialist or ENT) or to a psychiatric provider. At a March 2011 VA ENT examination, the Veteran denied discharge, pain, surgeries or hospitalizations, and trauma associated with his ears. He also denied vertigo and balance problems. He had some hearing loss and infections years ago, but no current treatment for his ears. The Veteran reported intermittent, buzzing in his ears, most typically when he was nervous or in the evening. He also noticed that he was aware of his heartbeat in the evening at the time of the buzzing sensation and had difficulty falling asleep as a result of it. He described the tinnitus as a low buzz or vibration sound that occurred with hearing his heartbeat, as a "shush, shush, shush" sound. If he punched himself in the shoulder, the buzzing and heartbeat would move out of his head and in to his left shoulder where he punched. The heartbeat and sensation of the heart beating made him somewhat anxious. The Veteran reported past treatment for anxiety and, perhaps, depression. He was treated with tranquilizers, but found them expensive and did not like the side effects. He had not taken medication in some time. On examination, his ears, tympanic membranes, oropharynx, nasal passages, speech, and neck were normal; although, he did have abundant wax in both ears. The diagnosis was intermittent tinnitus with awareness of the Veteran's heartbeat. The examiner opined that the Veteran's intermittent tinnitus was not related to his military service. However, the examiner continued that it was unclear whether the Veteran had true tinnitus or an awareness of his heartbeat, which many people feel from time to time and has no clinical significance. The examiner noted that the Veteran's anxiety seemed to make his symptoms worse. At his January 2016 Board hearing, the Veteran testified that he had ringing in the ears and palpitations that occurred late midnight or early in the mornings. They subsided after he got going in the morning and working. He thought the ringing and palpitations were PTSD. See Hearing Transcript at 9-10. The Board finds that the Veteran should be reevaluated for a determination as to whether he has a chronic disability manifested by ringing in the ears (claimed as tinnitus) that is caused by or aggravated by an acquired psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses, with approximate dates of treatment, of all medical care providers, VA and non-VA, who have provided treatment to him for any psychiatric and tinnitus disorder. Obtain all VA treatment records that have not been obtained already. Once signed authorizations are received from the Veteran, obtain all private treatment records that have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. If efforts to obtain any identified records are unsuccessful, the Veteran must be informed of the missing records, the efforts made to obtain them, and of further actions that will be taken. 2. Contact the U.S. Army Crime Records Center and resubmit the request to verify the claimed stressor event ("during basic training two men were killed at the grenade range in 1969") and ensure the unit information ("Company D, 10 Battalion, 1st Brigade" at Fort Benning, Georgia) is provided. The response should be made a part of the record. 3. After the above development has been completed, schedule the Veteran for a VA examination with a psychologist or psychiatrist to diagnose the onset and etiology of any acquired psychiatric disorder to include PTSD. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All indicated tests and studies, to include psychological testing, should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough evaluation of the Veteran, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Is there clear and unmistakable evidence that shows that the Veteran entered service with a pre-existing psychiatric disability? If yes, does clear and unmistakable evidence show that the preexisting psychiatric disability did not undergo a permanent worsening beyond normal progression during the Veteran's honorable period of active service? In regard to rendering the foregoing opinions, the examiner should consider a physician wrote on the Veteran's July 1969 pre-induction medical history that he was a "worrier," and an April 1970 psychiatric screening shows the Veteran reported that he had trouble with nerves in basic training. In addition, the Veteran stated that, when he came home from the military in 1971, he was diagnosed with a nerve disorder and was given tranquilizers. (b) If the answer to either question in subparagraph (a) above is no, is it at least as likely as not (50 percent or greater probability) that any such acquired psychiatric disorder to include PTSD had its onset during the Veteran's military service or was otherwise caused by or etiologically related to the Veteran's military service? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a chronic disability manifested by ringing in the ears (claimed as tinnitus) that is caused by OR aggravated by an acquired psychiatric disability. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner must provide a clear rationale for all opinions. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. 4. Schedule the Veteran for a VA examination by an ear, nose, and throat specialist for purposes of determining the etiology of the claimed ringing in the ears (claimed as tinnitus). The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All indicated tests and studies, should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough evaluation of the Veteran, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiry: Is it at least as likely as not (50 percent or greater probability) that the Veteran has a chronic disability manifested by ringing in the ears (claimed as tinnitus) that is caused by OR aggravated by an acquired psychiatric disability. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner must provide a clear rationale for all opinions. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. 5. Readjudicate the claims after the development requested above has been completed. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).