Citation Nr: 1622945 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 13-18 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This appeal is before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In a February 2011 statement, the Veteran initially requested a hearing before a decision review officer at the RO, but he subsequently withdrew that request in a March 2015 statement. In March 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A current acquired psychiatric disability has not been established. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated March 2009. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained. The Veteran was provided a VA mental health examination in December 2014. The Board finds that this examination and its associated report were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). PTSD The Veteran claims service connection for an acquired psychiatric disorder, specifically PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including psychosis and organic diseases of the nervous system such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of or treatment for any mental health conditions. VA treatment records reflect that in January 2009 the Veteran reported irritability, nightmares, sleep disturbances, avoidance of crowds, poor appetite, hypervigilance, and exaggerated startle response. He reported that he had been treated with tranquilizers for one to two years after returning from Vietnam. He further stated that he felt guilty about killing innocent Vietnamese in service and that he had flashbacks of seeing his best friend's head blown off. He was diagnosed with anxiety disorder and depressive disorder, rule out PTSD, and prescribed medication. In March 2009 he was subsequently diagnosed with PTSD. In a March 2009 statement, the Veteran stated that while stationed in Vietnam, he saw his best friend's head get blown off. He provided his friend's name but could not remember his rank or where in Vietnam the incident occurred. He stated that he was stationed in Vietnam for all of 1968 until April 1969, and that this incident occurred 10 months into his tour. In a separate statement, the Veteran explained that he was a combat engineer and explosive expert who worked disarming mines. In an August 2009 statement, the Veteran provided the unit information for his friend. In January 2010, VA issued a formal finding of inability to corroborate the Veteran's claimed stressors. Specifically, VA noted that the Veteran did not reply to requests for more specific dates and locations, and list of casualties in Vietnam by the National Archives could not corroborate the name of the individual provided by the Veteran. Furthermore, the Veteran's records showed no evidence of combat or an award of combat decorations. VA treatment records indicate that in March 2010 the Veteran reported that he was fine as long as he was on his medication. He was diagnosed with major depressive disorder in full remission and stable PTSD. In August 2010 he reported irritability and transient depressed mood, but no sustained periods of depressed mood. Sleep remained intermittent, partially due to nightmares and partially due to difficulty with sleep apnea treatment. He continued to experience visual recollections but they did not affect him as much emotionally. In January 2011 and June 2013 statements, the Veteran gave a much more detailed account of his service in Vietnam. He said he arrived in Vietnam in February 1968 and gave a more precise date for the death of his friend between April and July of 1968, describing how his friend trigged a mine. He stated that his friend's body exploded with the head landing in his lap, which causes his flashbacks. In his June 2013 substantive appeal, the Veteran stated that he served a combat tour in Vietnam during which he was in constant fear of hostile military or terrorist activity. The Veteran underwent a VA examination in December 2014. The examiner found that despite subjective complaints, there were no objective findings to support a diagnosis of a mental disability related to military service. Specifically, the examiner found that the results of the examination were unreliable because the Veteran demonstrated a pervasive and consistent pattern of internally and externally inconsistent responding across psychological interviewing. The examiner further explained that standardized psychometric testing designed to detect performance validity provided objective evidence that the Veteran is not a reliable source of information regarding his subjective memory and cognitive complaints. The examination report explained the questionable results of each of these tests in detail. The report further noted that when confronted with these inconsistencies, the Veteran explicitly admitted that he was intentionally falsifying symptoms in order to obtain service connection. Likewise, the examiner noted that the validity of his treatment records which rely solely upon self-report are also called into question due to the Veteran's response style and behavior during this examination. For this reason, the examiner declined to endorse any mental health diagnosis. In a February 2015 letter, the Veteran's VA treating psychiatrist wrote that the Veteran was under care at the VA mental health clinic. The psychiatrist further stated that there are no restrictions on the Veteran's ability to perform in the expected capacity, as he is engaged in treatment and mentally and emotionally stable for work. Submitted with this letter was a record of the Veteran's prescribed medication. At his March 2016 hearing, the Veteran reported that his friend got killed right in front of him. He stated that he was supposed to disarm mines, but the lieutenant changed the assignment at the last minute and put his friend in instead. The Veteran's wife testified that when they first got married, he was "climbing up walls," and that she would find him in the closet in the fetal position rocking back and forth and crying. The Board finds that the evidence weighs against a finding that the Veteran suffers from a current mental health disability. His admission at his VA examination that he had deliberately falsified information renders doubtful all of the subjective evidence in the record, and there is no objective evidence of a mental health disability. The detailed report of the VA examiner is highly probative, particularly in its explanation of how the examiner discovered the Veteran's inconsistencies, how he admitted to the falsifications, and the implications of the falsifications on the remainder of the medical evidence. Furthermore, the unreliability of the Veteran's statements is congruent with the inability of VA to corroborate the name of the Veteran's deceased friend in the casualty record at the National Archives. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran suffers from a current mental health disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is therefore denied. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. REMAND The Veteran claims service connection for bilateral hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Before proceeding, the Board observes that VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI). For these readings, ASA units appear to the right and in parentheses, while ISO-ANSI units appear to the left. Service treatment records do not reflect any symptoms of or treatment for hearing loss. At the Veteran's September 1967 induction examination, audiometry results revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (-10) 15 (5) 15 (5) No record 10 (5) LEFT 5 (-10) 0 (-10) 0 (-10) No record -5 (-10) At his April 1969 separation examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 VA treatment records reflect that in February 2009 the Veteran reported painful tinnitus interfering with his hearing. In a March 2009 statement, the Veteran reported that in service he was a combat engineer and explosive expert, and that the exposure to noise from blowing up bombs caused his bilateral hearing loss. The Veteran underwent a VA examination in March 2010. He reported ringing in his ear and difficulty hearing low frequency noises. In-service noise exposure included explosives and weapon fire without protection; post-service noise exposure included refinery and power plant work with protection. On examination, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 85 85 80 70 LEFT 45 45 45 60 50 Speech recognition testing was 24 percent in the right ear and 80 percent in the left ear. He was diagnosed with bilateral hearing loss and persistent tinnitus in the right ear. The examiner opined that it was less likely than not that hearing loss is related to military service. This opinion was based on the rationale that he had normal hearing upon separation. The examiner further opined both that right side tinnitus is at least as likely as not associated with hearing loss and that it is at least as likely as not that tinnitus is the result of military service, based on the rationale that his noise exposure in service could cause tinnitus. VA treatment records indicate that one week after the Veteran's March 2010 VA examination he was again tested for hearing. Records do not contain the actual thresholds measured, but the VA audiologist diagnosed the Veteran with mild sensorineural hearing loss in the right ear and normal thresholds in the left ear from 250 to 8000 hertz. The audiologist determined that the Veteran's hearing is adequate for him to hear in most listening situations. At his March 2016 hearing, the Veteran reported that he believed that his hearing loss was caused by the blasting he was exposed to when working as a minesweeper in Vietnam. The Board finds that remand is necessary for more development because there is a discrepancy in the medical evidence. The March 2010 VA audiological examination report includes audiometric test results indicating hearing loss of a profound and unusual severity. However, separate VA audiometric testing performed just one week after the examination yielded normal thresholds in the left ear and mild hearing loss in the right ear. The discrepancy between the results may be consistent with the unreliability of the Veteran's reports discussed with reference to PTSD in the decision above. Moreover, the record is deficient in that the specific thresholds from the treating audiologist report of March 2010 are absent and a diagnosis of mild right ear hearing loss was given. The Board thus finds insufficient evidence in the record to establish a current hearing loss disability. Remand is necessary to attempt to obtain these records. The Board further finds that the March 2010 VA examiner provided an inadequate opinion with regards to the relationship between any diagnosed hearing loss and service. Specifically, although noise exposure in service was conceded, the examiner simply opined that since hearing loss was not present in service, current hearing loss would not be related to service. However, the Court of Appeals for Veterans Claims (CAVC) has held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of hearing impairment after service. Hensley v. Brown, 5 Vet. App. 155, 159. Therefore, in view of the discrepancies and in inadequacies of the medical evidence, as described above, the Board finds that a new examination and opinion must be sought in order to fully and fairly adjudicate the appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file the audiometric testing results, including specific pure tone threshold measurements, from treatment dated March 10, 2010, at the VA medical center in Houston, Texas; and any audiological records thereafter. All efforts to obtain these records should be documented. 2. Schedule the Veteran for a VA audiological examination to assess the nature and etiology of any diagnosed hearing loss. The claims file should be reviewed by the examiner. The examiner shall provide an opinion regarding whether it is at least as likely as not (i.e. 50 percent probability or more) that any current hearing loss is related to the Veteran's in-service noise exposure. The opinion should be supported by a rationale beyond simply referring to the Veteran's normal hearing as measured upon separation. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. 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). 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs