Citation Nr: 1751772 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-11 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of prostate cancer, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). 3. Entitlement to an initial compensable rating prior to August 12, 2015, and a rating in excess of 20 percent thereafter, for bilateral hearing loss. REPRESENTATION Veteran represented by: Douglas Brooks, Agent WITNESSES AT HEARING ON APPEAL The Veteran and C.B. ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran had active service from July 1958 to April 1961 and from June 1961 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted, in pertinent part, the Veteran's claim of service connection for bilateral hearing loss and assigned a zero percent rating effective February 14, 2005. The RO also denied the Veteran's claims of service connection for prostate cancer, to include as due to ionizing radiation exposure. This matter further is on appeal from a March 2009 rating decision in which the RO denied the Veteran's claim of service connection for an acquired psychiatric disability, to include depression and PTSD (which was characterized as depression). The Board observes in this regard that, although the RO separately adjudicated a service connection claim for PTSD in a September 2011 rating decision, it appears from a review of the claims file that the Veteran seeks service connection for all acquired psychiatric disabilities that he currently experiences, to include depression and PTSD. Thus, this issue is as stated on the title page of this decision. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting Veteran based on review of medical evidence). A Travel Board hearing was held at the RO in February 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In August 2012, the Board remanded the case for further development. The case has been returned to the Board for further adjudication. In November 2015, the RO granted service connection for a dental disability for purposes of outpatient treatment only and granted an initial compensable rating of 20 percent for bilateral hearing loss, effective August 12, 2015. The award of service connection for a dental disability constituted a grant of full benefits sought on appeal, thereby resolving the appeal to the Board on this issue. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The Veteran has perfected an appeal with regard to the issue of service connection for a right knee disability. This issue has a pending hearing request. The Board will defer making a decision on this issue. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran maintains that his prostate cancer could be due to exposure to ionizing radiation during service. The Veteran served in Turkey between September 1963 and May 1964 and he contends that he was exposed to ionizing radiation when he served as an artillery field crewman there and maintained nuclear warheads. Prostate cancer is one of the radiogenic diseases presumptively associated with veterans who participated in a radiation-risk activity. 38 C.F.R. § 3.309(d), 3.311(b)(2). The Veteran's service personnel records confirm that he served in Turkey between September 1963 and May 1964. His DD Form 214 indicates that his military occupational specialty (MOS) was artillery field crewman. At the February 2012 Board hearing, the Veteran stated there was a tag on the wall in the room he performed his duties that would trip if radiation rose to a certain level. There is no indication that the VA has attempted to obtain the records related to this radiation tag since being informed of its existence. Additionally, a remand is required, as it does not appear that the correct procedures have been completed in order to obtain a dose estimate. The Board first notes that this claim does not involve U.S. atmospheric nuclear weapons tests, occupation of Hiroshima or Nagasaki, or FPOW interment in Japan. Therefore, it falls outside the scope of DTRA's Nuclear Test Personnel Review (NTPR) program. For a claim based on exposure to ionizing radiation by reason of the nature of military duties, the proper procedure is to prepare a separate Personnel Information Exchange System (PIES) request to obtain a copy of the record of occupational exposure to ionizing radiation from the Official Military Personnel File (OMPF), service treatment records (STRs), or any other record that contains radiation exposure information. See VA Adjudication Procedure Manual, M21-1MR, Part IV.ii.1.C.3.e.; see also 38 C.F.R. § 3.311 (a)(2)(iii). If evidence of occupational radiation exposure, such as a DD Form 1141, cannot be found in the Veteran's records or obtained through PIES, a written request for the record should be prepared, together with the identifying data as required by M21-1, Part IV, Subpart ii, 1.C.3.b, and sent to the appropriate service department point of contact listed in M21-1, Part IV.ii.1.C.3.f. Thereafter, the claim is to be referred to Compensation Service, Policy Staff (211B), for referral to the USH, or whoever is responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. See M21-1, Part IV.ii.1.C.4.b., and 5.a. With regard to the claim for service connection for an acquired psychiatric disorder, the Board notes the Veteran stated in his February 2012 hearing that his service in Turkey was very stressful. Due to the stressful nature of his duties, the Veteran was afforded one week of rest and recuperation every four to six weeks. In August 2015, the Veteran was provided a VA examination in connection with the claim. The examiner diagnosed major depressive disorder, recurrent, moderate. The examiner did not diagnosis PTSD; however, this diagnosis was made according to DSM-V criteria. As the Veteran's claim was certified to the Board on August 4, 2011 (i.e., before August 4, 2014), the DSM-IV remains applicable to this case. The Veteran reported that while stationed in Turkey he was assigned as a crew chief of an 8 inch Howitzer battery and was also there to safeguard Honest John rockets with nuclear warheads. The Veteran described a stressful event that resulted in severe burns of a friend while cleaning a missile cylinder. The examiner indicated that this stressor was adequate to support the diagnosis of PTSD. The examiner opined that it is less likely than not that the Veteran's major depressive disorder was incurred in or caused by service. The examiner noted the Veteran's 1963 Turkey service, but noted that the stressor described did not involve hostile military or terrorist activity, and the incident was best described as a prank that resulted in a burn to a friend. The examiner further opined that he did not diagnosis PTSD, and therefore it cannot be service connected. The examiner also noted that the Veteran's reports of military sexual trauma involved consent and were not presented as coerced sexual acts. The Board finds that further development is necessary to ascertain the nature of the Veteran's service in Turkey to include what the Veteran's duties entailed while he served in Turkey. Specifically, whether he guarded nuclear weapons or worked around nuclear weapons. Additionally, although the examiner noted the Veteran's stressful event, the rationale failed to address the relevance or impact of that event in relation to the current diagnosis or the relationship of his major depressive disorder with his active duty service. Thus, the Board finds that the statements provided fail to sufficiently support the examiner's opinion, resulting in an inadequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The opinion provided by the August 2015 VA examiner regarding an acquired psychiatric disorder is inadequate and remand is necessary to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the claim for an increased rating for bilateral hearing loss, the Board finds that a remand is necessary in order to obtain outstanding VA treatment records. Specifically, February 2007, July 2008, March 2011, and January 2015 VA audiology consults note that the Veteran was seen for hearing evaluations. The audiologists summarize his hearing acuity, but the complete audiological results of the hearing evaluations are not provided. The treatment record notes that audiograms were recorded, and that the results were viewable under "tools - audiogram display." As the February 2007, July 2008, March 2011, and January 2015 VA audiograms, if procured, could bear on the outcome of his claim still on appeal, efforts must be made to obtain them, as well as any VA treatment records dated after March 7, 2017. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The Veteran's most recent VA audiological examination was performed in February 2017. Review of the examination report shows that the examiner commented that puretone responses were not valid for rating purposes due to inconsistent results. Essentially, it was noted that all pure tone thresholds could not test ("CNT"). Likewise, the examiner added that speech audiometry using the Maryland CNC word list revealed speech recognition ability of 36 percent in the right ear and of 52 in the left ear; however, the use of these scores was not appropriate "because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate." The Board also notes that adequate audio clinical findings are included in the report of a prior (August 2015) VA examination report. On remand, the Veteran should be scheduled for another VA examination to determine the current severity of his service-connected hearing loss disability. This examination should be scheduled after the AOJ obtains and associates with the claim file all outstanding treatment records pertinent to the issue. Additionally, the examiner must fully address the impact of the Veteran's service-connected hearing loss on daily activities (including employment). See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 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 the complete results, including the audiograms, of the February 2007, July 2008, March 2011, and January 2015 VA audiology consultations, as well as any VA treatment records dated after March 7, 2017. 2. The RO or the AMC should undertake additional appropriate development of the Veteran's claim for service connection for prostate cancer as a radiogenic disease, based on asserted exposure to radiation when handling nuclear weapons from September 1963 to May 1964 when attached to Special Ammunition Support Command Detachment 98 Tuslog APO 254 in Turkey. The Veteran stated there was a tag on the wall in the room he performed his duties that would trip if radiation rose to a certain level. Queries should be directed through appropriate official channels, to ascertain whether the Veteran is on any lists of Army service members performing duties assigned to any unit or squadron handling nuclear weapons, including Detachment 98, and any information from the identified wall tag that monitored radiation levels. If any such duties or radiogenic exposure of the Veteran in service is corroborated, the claim should be fully developed and considered under the provisions of 38 C.F.R. § 3.311. If it is more efficient to development or if the above instruction yields no results, then complete all development required in order to obtain any available records concerning the Veteran's reported in-service exposure to radiation from the appropriate source, followed by an attempt to obtain a dose estimate, as required by VA Adjudication Procedure Manual, M21-1MR, Part IV.ii.1.C.3.(e) and (f), and 38 C.F.R. § 3.311 (a). 3. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner. The examiner must review the Veteran's complete claims file and a copy of this remand. a) The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. In this regard, while the DSM-5 is being used in clinical settings, for cases certified to the Board prior to August 4, 2014, (such as the Veteran's), the diagnosis must be in accordance with the DSM-IV. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-V)). b) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD. If the examiner does not find that the Veteran meets the DSM-IV's criteria for PTSD, he or she should explain why in detail and explain why prior diagnoses are inappropriate. If the examiner diagnoses the Veteran with PTSD under DSM-IV, he or she should identify the elements supporting the diagnosis and should provide an opinion as to whether the Veteran's PTSD is due to in-service stressors related to a fear of hostile military or terrorist activity. c) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disorder is related to the Veteran's military service. The examiner may review and comment on the opinion given regarding depression in the August 2015 VA examination report. The examiner must provide the rationale for any proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. In answering these questions, the examiner must provide a thorough and complete rationale for any conclusions reached, to include addressing the Veteran's full psychological history and lay statements. 4. The Veteran should be afforded a VA examination to evaluate the severity of his hearing loss disability. The claims file and VBMS file must be made available to and reviewed by the examiner and any indicated studies should be performed. The claims file and VBMS file must be made available to and reviewed by the examiner and any indicated studies should be performed. After examining the Veteran, the examiner should state the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities. 5. 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 paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative 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 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). ____________________________________________ MARJORIE A. AUER 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) (2017).