Citation Nr: 1627798 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 13-20 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 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) and major depressive disorder (MDD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. These matters come to the Board of Veterans' Appeals (Board) from January 2012 and September 2012 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned at a February 2016 videoconference hearing, and a transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus had onset during active service and has continued since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has duties to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. § 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, any further discussion of VA's duties to notify and assist is not warranted given the Board's favorable decision herein. II. Service Connection - Tinnitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including tinnitus, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims entitlement to service connection for tinnitus as a result of his in-service noise exposure. Service treatment records do not document any specific complaints, treatment, or diagnosis of tinnitus. Upon VA examination in August 2012, the Veteran reported tinnitus with onset during maneuvers in Germany after sleeping next to a group of Howitzer guns which fired at night. However, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. As a rationale, the examiner noted that there was no record of tinnitus in service treatment records and the Veteran did not report ear trouble in a report of medical history at service discharge. Additionally, he stated that although the Veteran was undoubtedly exposed to loud noise during active service, audiometric test results showed no change in hearing from service enlistment to discharge that would support a noise-induced cause for his current tinnitus. The Board acknowledges that tinnitus, in particular, is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is thus competent to report that he experiences intermittent tinnitus since its onset during active service. See Layno, supra. Likewise, the Veteran is competent to establish a nexus to service by his credible reports of intermittent tinnitus since active service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. Furthermore, the Veteran has consistently reported the circumstances of his exposure to loud noise during active service, including at the February 2016 Board hearing, and the Board finds no reason to doubt his credible statements in this regard. Additionally, a June 2013 buddy statement from a soldier who served with the Veteran corroborates his reports of in-service noise exposure and complaints of tinnitus. Therefore, the Veteran's lay statements that he experienced tinnitus during and since active service are probative evidence. Moreover, the Board finds no reason to doubt his statements in this regard, despite a lack of such reports within service treatment records. Although the August 2012 VA examiner ultimately opined that the Veteran's tinnitus was not caused by or a result of active service; it does not appear that the examiner considered the Veteran's competent and credible statements concerning his tinnitus disability in particular. Rather, the examiner based the negative nexus opinion on a lack of in-service complaints of tinnitus and audiometric test results which showed no change in hearing from service enlistment to discharge. As such, the Board affords little probative value to the August 2012 VA examiner's negative nexus opinion. In conclusion, after resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to his active service, including in-service noise exposure; therefore, service connection for tinnitus is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER Service connection for tinnitus is granted. REMAND The Board finds that additional development is necessary prior to adjudication of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD. In particular, service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2015). The diagnosis of PTSD must comply with the criteria set forth in the DSM-5. 38 C.F.R. § 4.125(a) (2015). In order to grant service connection for PTSD to a non-combat veteran, there must be independent credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). However, those service records which are available must support and not contradict the Veteran's lay statements regarding the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Post-service treatment records document that the Veteran has current psychiatric diagnoses including PTSD and MDD; moreover, an August 2010 private psychiatric treatment records has directly related his current psychiatric diagnoses to his reported in-service motor vehicle accident. Therefore, the remaining question is whether there is credible supporting evidence that the Veteran's claimed in-service stressor actually occurred. The Veteran has consistently reported that his claimed acquired psychiatric disorder, to include PTSD and MDD, is a result of an in-service stressor event, namely a motor vehicle accident. Specifically, he has stated that while he was stationed in Germany in early 1967, he struck and crushed a civilian vehicle while driving a large refueling truck and possibly injured or killed the driver. He stated that he was detained by German law enforcement and turned over to military police, after which he was questioned. In November 2011, VA sought to verify the Veteran's claimed in-service stressor by requesting corroborating records from Joint Service Records Research Center (JSRRC) via the Defense Personnel Records Information Retrieval System (DPRIS). A January 2012 response from DPRIS indicates that research of U.S. Army historical records did not document the incident described by the Veteran. Research was also coordinated with an analyst at Military Professional Resources Inc. (MPRI), an L-3 Division of the U.S. Army Europe, who reported that there was no available information to support or deny the Veteran's reported stressor. Supporting correspondence from the Veteran's brother and sister in August 2011 documents that the Veteran wrote to his siblings in 1967 regarding his reported motor vehicle accident in early 1967 and its overall negative effect on his mental health. An April 2012 e-mail response from the Aschaffenburg, Germany Police Authority reports that their facility was unable to assist in investigating the Veteran's reported in-service stressor because German records retention policy and law required the deletion of traffic accident files after five years. For the same reason, they noted that the local police headquarters in Regensburg or Weiden near the Veteran's training area would also not be able to contribute any relevant records. Notably, however, the Police Authority stated that a request to the local newspaper at Weiden, "Der Neue Tag," might help to investigate the reported motor vehicle accident. Additionally, they noted that the U.S. military policy station at Aschaffenburg was closed after Operation Desert Storm, but that the U.S. Headquarters at Heidelberg might have records on the Veteran's reported accident. Additionally, a November 2013 letter from the U.S. Army Office of the Chief of Legislative Liaison in response to a congressional inquiry regarding the Veteran states that U.S. Army officials in Germany advised that a request should be made to the U.S. Army Criminal Investigation Command (CIC), Crime Records Center (CRC), as that facility may have the records sought by the Veteran to corroborate his reported in-service stressor. Notably, the record does not indicate that any attempts were made to follow up on the April 2012 e-mail by the Aschaffenburg, Germany Police Authority regarding a request to the local German newspaper at Weiden, "Der Neue Tag," to investigate the Veteran's reported 1967 motor vehicle accident. Perhaps more significantly, it does not appear that the RO acted in response to the November 2013 congressional inquiry letter to take steps to obtain any outstanding U.S. Army CIC records from the CRC related to the Veteran's reported in-service stressor. As it appears that there may be available private newspaper records and U.S. Army CIC records pertinent to the Veteran's claim that are not associated with the claims folder, a remand is required to obtain such records in order to assist with corroboration of the Veteran's reported in-service stressor. See 38 C.F.R. § 3.159(c)(2) (2015); see also M21-1MR, Part IV, Subpart ii, Chapter 1, Section D.5. Accordingly, the case is REMANDED for the following action: 1. Take all appropriate steps to verify the Veteran's claimed in-service stressor, to include contacting the U.S. Army Crime Records Center (CRC), National Personnel Records Center (NPRC), the Records Management Center (RMC), and/or any other appropriate records repository, to request any outstanding U.S. Army criminal investigation records or any other relevant records related to the Veteran's reported stressor. 2. Following the above development, conduct any additional development warranted as a result, to include the possibility of a VA psychiatric examination to determine the etiology of any diagnosed acquired psychiatric disorder, to include PTSD and MDD, including its relation to any stressor events confirmed as a result of the development above. 3. Then, readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow a reasonable opportunity for response, after which the matter should then be returned to the Board for further adjudication, if otherwise in order. (CONTINUED ON THE FOLLOWING PAGE) 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs