Citation Nr: 1801207 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-11 255 ) 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 disorder, claimed as posttraumatic stress disorder (PTSD) due to an in-service assault. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to January 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2013 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has characterized the Veteran's claim broadly, as reflected on the title page. The record before the Board consists of electronic records within the Veterans Benefits Management System. 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). FINDINGS OF FACT 1. The Veteran's PTSD is etiologically related to an in-service assault. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus originated during service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017). The Veteran asserts that his currently diagnosed PTSD is the result of a racially motivated physical assault and subsequent conflict with fellow service members. The Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events the Veteran alleges occurred. See, e.g. Patton v. West, 12 Vet. App. 272 (1999). In this regard, the Veteran is competent to describe his in-service experiences. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also acknowledges that the relevant regulation stipulates that if PTSD is based on an in-service personal assault, evidence from sources other than a Veteran's service records may corroborate his or her account of the stressor incident. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be used to corroborate the stressor. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5) (2017). Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. Service connection for PTSD The Veteran asserted that he was the victim of a racially motivated attack during service in the fall of 1973. He described the incident in written statements and at his May 2017 hearing. He reported that everything was fine early in his service, but that he began to hear race-based, derogatory comments made about him on the Sundew, a ship he was stationed on in Michigan. He recalled being struck on the neck from behind, unprovoked, by a petty officer in September or October of 1973 during shore leave. He was knocked down and kicked and defended himself before others got involved. He asserted he did not report the incident and that upon his return to the ship, the officer was there, and everyone acted as if nothing had happened. He stated that after the assault, he felt numb, let down, and very isolated on the ship. He explained he continued to be harassed by his attacker and other officers, to include by being made to do unnecessary tasks and being accused of false charges, which resulted in an "inquiry sort of trial." He felt humiliated by duties imposed on him as a result, including having to clean up the officers' dining area after breakfast, lunch, and dinner. He explained he was 130 pounds during service, and was dealing with much larger service members, and feared for his life and safety. Specifically, he recalled that in subsequent encounters with his attacker, the attacker made physical gestures referencing throwing the Veteran overboard. He recalled he continued to be ridiculed, called racial slurs, and threatened. He explained he had intended to make the military a career, but got out as soon as he could due to his experiences. The Veteran's official military personnel file (OMPF) shows in December 1973, he was disciplined for failure to obey a direct order, and was assigned extra duties. A January 1974 personnel record shows he was disciplined for possession or transfer of marijuana. On a form in June 1974, the Veteran remarked he was undecided about re-enlistment, and he requested a transfer in order to spend the rest of his enlistment closer to home, and in order to have a better outlook of the Coast Guard. A July 1974 document indicates the Veteran's transfer request was initially disapproved due to a previous low conduct mark. In September 1974, the Veteran was again disciplined and assigned additional duties for threatening to "get even" with a petty officer. VA outpatient treatment records show the Veteran was diagnosed by a psychologist with PTSD and depression related to the above-described in-service incidents as early as June 2013. The Veteran was afforded a VA contract psychiatric examination in October 2014. The examiner noted the Veteran's account of his in-service assault by a petty officer and his personnel records showing the disciplinary actions described above. The examiner also noted the Veteran had been treated for PTSD by VA providers. Ultimately, the examiner indicated the Veteran had a diagnosis of PTSD that conformed to the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. The examiner then opined the Veteran's PTSD was at least as likely as not caused by service. In this regard, the examiner noted that the Veteran's records showing discipline for threatening to "get even" with a petty officer constituted potential evidence of the previous assault. Upon a review of the foregoing, the Board finds the record supports the Veteran's assertion that he was assaulted by a petty officer in the fall of 1973. Specifically, the Board observes that the Veteran's accounts of the incident and his subsequent treatment while in service have remained consistent throughout the period of the claim, and thus, the Board finds the Veteran is credible. Furthermore, while the record does not specifically document the assault itself, the Board finds the Veteran's disciplinary records and request for a transfer, each dated a short time after the date of the claimed assault, are sufficient evidence to corroborate the assault's occurrence. The Board next notes that VA outpatient mental health notes, as well as the October 2014 VA examination report, provide a diagnosis of PTSD and attribute the diagnosis to the Veteran's in-service assault and other experiences while in service. In sum, the Board finds all of the criteria for establishing service connection for PTSD have been met. Accordingly, granting of service connection for PTSD is in order. Service connection for tinnitus The Veteran has contended he began suffering from tinnitus during service. Specifically, he explained that his duties included "watches," in which he would walk up and down the ship, including the engine room, without hearing protection. Moreover, his duties included using "needle guns" and other power tools to strip paint off of the metal ship for eight to twelve hours at a time before repainting. He explained that only a limited amount of hearing protection equipment was available, and that if he did not get it in time, he would just stuff tissues in his ears. He also noted that after being transferred to a Naval Air Station he was exposed to the noise of helicopters, which took off right next to his office. In his May 2017 testimony, the Veteran specifically recalled experiencing ringing in his ears during service, which he stated has persisted to the present day. The Veteran was afforded a VA audiology examination in June 2013. Although the examiner documented his report of recurrent tinnitus, she opined that the condition was less likely than not related to service, as the Veteran's hearing was within normal limits at entrance and discharge. At this juncture, the Board notes that it must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). Upon a review of the June 2013 VA examination report, the Board notes the examiner did not address the Veteran's competent statements recalling ringing in his ears during service. In this regard, the Veteran has continuously reported he was exposed to significant noise during his periods of active duty, that he noticed tinnitus during his time in the military, and that his tinnitus has persisted since that time. The Board finds the Veteran is competent to report ringing in his ears. Accordingly, the lay evidence provided by the Veteran is competent evidence as to the date of onset of his tinnitus. Upon a careful review of the foregoing, the Board has determined the evidence is at least in equipoise as to whether the Veteran's tinnitus originated during service. Consequently, granting of service connection for tinnitus is in order. ORDER Service connection for PTSD is granted. Service connection for tinnitus is granted. REMAND With regard to the Veteran's claim for service connection for bilateral hearing loss, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran has contended his bilateral hearing loss is related to in-service noise exposure. Specifically, he explained that his duties included "watches," in which he would walk up and down the ship, including the engine room, without hearing protection. Moreover, his duties included using "needle guns" and other power tools to strip paint off of the metal ship for eight to twelve hours at a time before repainting. He explained that only a limited amount of hearing protection equipment was available, and that if he did not get one in time, he would just stuff tissues in his ears. He also noted that after being transferred to a Naval Air Station he was exposed to the noise of helicopters, which took off right next to his office. He was afforded a VA audiology examination in June 2013. The examiner diagnosed bilateral sensorineural hearing loss, but opined the condition was less likely than not related to the Veteran's service, as his hearing tests at entrance and separation were within normal limits. Upon review, the Board notes many of the Veteran's statements regarding in-service noise exposure were made at his May 2017 hearing, subsequent to his VA examination. As such, the examiner did not have the opportunity to address the Veteran's contentions. Under these circumstances, the Board finds the June 2013 examination report is inadequate for adjudication purposes, and that a remand is therefore warranted in order to obtain an additional examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination to determine the nature and etiology of his bilateral hearing loss. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss originated during or is otherwise etiologically related to his military service. In providing his or her opinion, the examiner must address the Veteran's lay statements describing in-service noise exposure in the form of patrols of engine rooms, the use of "needle guns" and other power tools, and proximity to helicopters, all without the use of hearing protection. The examiner must provide a rationale for any proffered opinion. 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. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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). Department of Veterans Affairs