Citation Nr: 1634242 Decision Date: 08/31/16 Archive Date: 09/06/16 DOCKET NO. 12-13 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for right ear sensorineural hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety not otherwise specified (NOS) and depression. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran had active service from July 1968 to July 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran's claim from entitlement to service connection for PTSD has been expanded to entitlement to service connection for an acquired psychiatric disorder to include, PTSD, anxiety NOS and depression. Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Such is appropriate as a review of the record reflects that he has various diagnosed psychiatric disorders, including PTSD, anxiety NOS and depression. This alteration is reflected on the title page of this decision and will be explained in detail in the remand portion of this decision. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety NOS and depression is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's right ear sensorineural hearing loss is as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for right ear sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Veteran's claim is granted herein, any error related to the VA's duty to notify and assist is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Generally, to establish service connection, the evidence 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to current disability, on December 2009 VA examination, the Veteran was diagnosed with right ear severe sensorineural hearing loss. He was also determined to have a word recognition score of 92 percent for the right ear. This speech recognition score meets the VA criteria for a hearing loss disability. 38 C.F.R. § 3.385 (2015). The first element of Shedden is established. With regard to in-service injury, acoustic trauma has previously been conceded by the RO as his military occupational specialty (MOS) was a construction maintenance specialist. Personnel records support that his MOS would have involved his exposure to hazardous noises from explosions and heavy equipment. Therefore, the Board will also concede noise exposure, as such the second element of Shedden is met. What remains for consideration, is whether the Veteran's current disability can be related to his service. On 2009 VA examination, the examiner conceded in-service noise exposure, and opined that his left ear hearing loss and tinnitus were caused by such in-service exposure. However, in a March 2010 addendum, the examiner opined that his complaints of right ear hearing loss were less likely as not caused by or a result of his service. The Board finds this opinion inadequate for adjudication purposes as the rationale provided was insufficient. Specifically, this opinion was based, in part, on the absence of documented hearing loss at discharge from service. Such a rationale is insufficient and inadequate in light of Hensley v. Brown. 5 Vet. App. 155, 159 (1993). (holding that 38 C.F.R. § 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service'). Also of record is a positive nexus opinion from the Veteran's private physician Dr. P. D., MD. See September 2010 Correspondence. Dr. P. opined that the Veteran's right ear hearing loss, like his left ear, was as likely as not due to acoustic trauma in service. In rationalizing this opinion, Dr. P. cited to the hazardous noises experienced by the Veteran while working in his indicated MOS. In pertinent part, Dr. P noted that his noise exposure was derived from "building roads and runways" while using "explosives, and heavy equipment such as large tractors." As support for the Veteran developing hearing loss in-service, Dr. P. cited to reviewing his hearing loss frequency ranges and finding them consistent with an individual who had experienced acoustic trauma. Parenthetically, the Board notes that of record is a June 2010 audiometric examination ordered by Dr. P. Lastly, Dr. P. opined that, notwithstanding the Veteran's normal hearing on service separation, it was indeed possible that he experienced acoustic trauma as a result of service. Dr. P. explained that hearing loss due to acoustic trauma may manifest after a protracted period of time. In the instant case, the Veteran's symptoms were consistent with slowly progressive hearing loss. The Board finds that the September 2010 private medical opinion is adequate and highly probative because the physician discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusion reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no adequate medical opinion to the contrary and the private medical opinion is the most probative evidence of record. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a right ear hearing loss is warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ear sensorineural hearing loss is granted. REMAND The Veteran contends that he suffers from a psychiatric disorder due to events he experienced during active service, including watching the body of a Vietnamese civilian being intentionally "mangled" under a tank. See March 2009 Statement. Importantly, in November 2009, the RO provided the Veteran with a formal finding of lack of information to corroborate this stressor. Nevertheless, the record contains other reports of stressors yet to be verified. Specifically, at the time of his initial PTSD diagnosis his stressors were noted to be "reported combat trauma in Vietnam (firefights, carnage)." See November 2008 VAMC Northport treatment medical records. With regard to this notation, the record is silent as to the Veteran reporting that he had either been involved in, or witnessed, firefights while in-service. Significantly, such a reported stressor could potentially support a diagnosis of PTSD on the basis of fear of the hostile enemy. See 38 C.F.R. § 3.304(f). Therefore, an attempt should be made to obtain and verify the full account of the Veteran's reported experiences. The Board finds that a new VA examination is necessary. On 2011 VA examination, the Veteran was diagnosed only with alcohol abuse, which the examiner essentially opined was unrelated to his service. In that regard, the examiner failed to address VA treatment records wherein a VA psychologist opined that his alcohol abuse was secondary to his PTSD. See November 2008 VAMC Northport treatment records. Discussion of this record is crucial. Furthermore, at the time of VA examination in 2011, the examiner noted that with regard to treatment the Veteran "had a single consultation with [a] Northport VA primary care psychologist in 2008." Since this examination, the claims file contains additional medical records indicating continued treatment of PTSD, as well as, other psychiatric disabilities. Correspondingly, these records reflect that the Veteran is in receipt of diagnoses for depression and anxiety NOS. Neither of these disorders were considered at the time of the last VA examination. In light of the foregoing, additional development is necessary in order to appropriately adjudicate the Veteran's contentions regarding the etiology of his acquired psychiatric disorders. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Review the file and prepare a summary of the claimed additional stressor, of the Veteran witnessing, or engaging in, firefights while in Vietnam. See VAMC Northport Treatment records dated on November 2008. Obtain additional information from the Veteran regarding the claimed stressor. Only if he responds should this summary, and all associated service documents, be sent to the National Personnel Records Center or any other appropriate agency for verification of the alleged stressful event in service. The agency should be provided with a copy of any information obtained above, and should be requested to provide any additional information that might corroborate the Veteran's alleged stressor. The RO/AMC should then indicate in the claims folder what stressors have been verified. All records and responses received must be associated with the claims file. See M21-1MR, Part IV, subpart ii, I.D.15. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of an acquired psychiatric disorder, to include PTSD, anxiety NOS and depression. Provide the examiner with information (such as a summary of corroborated stressors) and directions consistent with current applicable regulations. The claims file and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report. The examiner should address the following: a) Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the pendency of the claim. The examiner should offer an opinion on whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. b) If PTSD is found, the stressor relied on should be noted in the record. c) If the diagnosis of PTSD is not made, the examiner must rationalize such a finding against the Veteran's treatment medical records which denote a diagnosis of PTSD at least as early as 2008. See VAMC Northport treatment medical records. Special attention is directed to the November 2008 VAMC Northport record wherein the Veteran's physician opines that his alcohol abuse is secondary to his PTSD. Note: this diagnosis was made during a period in which his alcohol dependence was indicated to be in remission. d) For each assigned current diagnosis, to include PTSD and/or any other acquired psychiatric disorder present, the examiner should be asked to provide an opinion as to whether it is at least as likely as not (a 50 percent, or greater, likelihood) that the current acquired psychiatric disorder(s) was (were) incurred during the Veteran's service or as a result of an incident or stressor during the Veteran's service. A complete rationale for any opinion expressed must be provided. An examiner's report that he or she cannot provide an opinion without resorting to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, the RO/AMC should readjudicate the Veteran's claim to include consideration of all evidence received as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and allowed an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise 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). 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs