Citation Nr: 1802039	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  11-08 974A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for a hearing loss disability.

2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus.

3. Entitlement to service connection for posttraumatic stress disorder (PTSD).

4. Entitlement to service connection for an acquired psychological disorder other than PTSD, to include major depressive disorder and anxiety.

5. Entitlement to service connection for a pulmonary disability.

6. Entitlement to service connection for headaches.

7. Entitlement to service connection for residuals of a traumatic brain injury (TBI).

8. Entitlement to service connection for insomnia.
REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1975 to September 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) in February 2010 (denying, inter alia, service connection for pulmonary problems, headaches, TBI residuals and continuing denials of service connection for a hearing loss disability, tinnitus, and PTSD) and in March 2016 (denying, inter alia, service connection for insomnia). 

In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record.

The Board notes that the issues of reopening a claim for a hearing loss disability and tinnitus may, depending on further development, be subsequently recharacterized as simply for service connection (if lost VA claim file records are not found on remand, see remand below, the addition of relevant service treatment records (STRs) to the file after a February 2007 rating decision denying the issues constitute the basis for reconsideration. See 38 C.F.R. § 3.156(c)).

The Board finds that a February 2007 denial of the Veteran's claim of service connection for PTSD warrants reconsideration on the basis that relevant STRs, namely an October 1976 notation of "anxiety abdominal pain," were later associated with the claim file. See 38 C.F.R. § 3.156(c). As a result, the issue has not been characterized as a request to reopen a previously denied claim. Further, because the Veteran filed a separate October 2008 claim for an acquired psychological disorder, to include anxiety and depression, the Board will adjudicate the issues separately and has recharacterized the acquired psychological disorder issue to exclude PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

After the Veteran filed his substantive appeal (VA Form 9), the Veteran's appeal of entitlement to service connection for a stomach condition was granted in an April 2017 rating decision. Because that decision represents a full grant of the benefit sought, the issue is not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 

All issues except entitlement to service connection for an acquired psychological disorder other than PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required.


FINDING OF FACT

The evidence is at least in equipoise that the Veteran is diagnosed with major depressive disorder and generalized anxiety disorder, which were caused by his service-connected stomach disability.






CONCLUSION OF LAW

Service connection for major depressive disorder and generalized anxiety disorder is warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran submitted a November 2009 opinion by Dr. S. Wing, PhD, who diagnosed major depressive disorder and generalized anxiety disorder. She discussed that the Veteran was hospitalized for his (now service-connected) stomach disability during service and was honorably discharged due to that medical condition; she later opined that his anxiety and depression are secondary to that injury. Her opinion is contradicted only by one March 2015 examination in VA treatment records that found that the Veteran had no psychological disorders, but otherwise VA and private treatment records support a diagnosis of depression and anxiety that are separate from PTSD. See November 2014 and December 2015 VA treatment records discussing that the Veteran only has depression or anxiety; July 2017 private opinion by Dr. L. James, PhD. Accordingly, the evidence is at least in equipoise that the Veteran has major depressive disorder and generalized anxiety disorder and service connection is warranted. 


ORDER

Service connection for major depressive disorder and generalized anxiety disorder is granted.




REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his appeal.

As an initial matter, the VA claim file prior to November 2005 is missing or lost. Although the AOJ determined in January 2006 that no records could be found, there is insufficient evidence that it followed the procedures as outlined in the VA Adjudications Manual, including a request to the Records Management Center to conduct a "missing folder search." See M21-1, III.ii.4.D.1.a-b. As a result, all issues must be remanded so that proper procedures are followed to ensure that the missing records cannot be found, and, if not, the Veteran should be so notified in writing.

Similarly, it appears that some of the Veteran's service personnel records are missing, including his DD 214. Although the AOJ determined that the Veteran's active duty STRs were unavailable in December 2009, the Veteran was not notified of that fact (the Board notes that incomplete STRs were associated with the file at a later date). On remand, an exhaustive search for the Veteran's missing service personnel records should be undertaken and the Veteran should be notified of all unavailable records.

PTSD

The Veteran submitted two private medical opinions diagnosing him with PTSD. See November 2009 opinion by Dr. Wing and July 2017 opinion by Dr. James. Throughout the record, the Veteran has reported four stressors in service: (1) hitting his head against the inside mount of a gun wall and almost having both arms amputated by a closing hatch, (2) a near-death experience on the USS Talbot due to a fuel line leak, (3) being on a rescue mission when two pilots died in a plane crash on the deck of the USS Forrestal, and (4) being aboard the USS Forrestal during a racial mutiny in 1976, which forced the ship to anchor in Norfolk Bay. Service personnel records of record show that the Veteran was aboard the USS Talbot from April 1976 to January 1977 and the USS Forrestal from January 1977 to September 1977. Although it is unlikely that additional development (other than additional STRs) can corroborate the first stressor, the other three stressors could reasonably be corroborated with further development. Given the information provided, remand is necessary for additional development to attempt to verify these stressors.

Pulmonary disability

Although the Veteran is not currently diagnosed with a pulmonary disability, he stated that he has breathing difficulty in cold weather. See October 2008 statement. He stated that he was hospitalized at the Great Lakes, Illinois, Naval Hospital for pneumonia during boot camp. See November 2008 statement. It does not appear that complete records from the Naval Hospital are of record nor have such records been sought. Additionally, the Veteran has also attributed his pulmonary problems to asbestos exposure and stated that his occupation while on the USS Talbot and USS Forrestal was as an instrument man. See September 2014 correspondence and July 2017 Dr. James opinion. According to the VA Adjudication Procedures Manual, such a Naval military occupational specialty has a high probability of asbestos exposure. See VA Adjudications Manual, M21-1, IV.ii.1.I.3.d. Thus, remand is necessary to seek out Naval Hospital records, develop the record for asbestos exposure, and obtain a VA examination to resolve remaining medical questions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

During his September 2017 Board hearing, the Veteran stated that he was treated for bronchitis at his hospital in Dayton, Ohio during the 1980's. On remand, the Veteran should be given the opportunity to provide medical releases for treatment records, if such treatment was at a private hospital. Similarly, the Veteran indicated that he began treatment in the Dayton VA Medical Center (VAMC) in 1977. See June 2009 representative correspondence. Only treatment records dating back to June 2006 are of record; thus, VA should also ensure that missing VA treatment records are retrieved on remand, if possible. 

TBI residuals

The Veteran reported that he has a TBI diagnosis. See September 2014 correspondence. Although not competent to diagnosis a TBI, he is competent to report that he has a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He has consistently reported that he hit his head inside of a gun mount. See, e.g., November 2008 statement. VA treatment records do not reflect treatment for a TBI, but given the Veteran's statement that he has a diagnosis a VA examination is necessary to resolve remaining medical questions presented. See McLendon, 20 Vet. App. at 81.

Headaches

The Veteran reported experiencing headaches in service, which the STRs of record corroborate. See July 1976 STRs. More specifically, he has stated that his headaches are due to his TBI during service or the noise from the gun mounts. See November 2008 statement and April 2011 substantive appeal. He has received treatment for headaches during the appeal period. See, e.g., August 2014 VA treatment records. Remand is necessary to obtain a medical opinion as to whether his headaches are a result of his military service. See McLendon, 20 Vet. App. at 81.

Insomnia

The Veteran reported sleep deprivation in service associated with his stomach condition. See December 1976 STRs. More recently, his difficulty sleeping has been described as related to his psychological disorders. See, e.g. November 2009 report by Dr. Wing. There is a question as to whether the Veteran's insomnia is a separate disability resulting from his service-connected stomach condition rather than a symptom of his service-connected psychological disorder. Remand for a VA examination is necessary to resolve the medical questions presented. See McLendon, 20 Vet. App. at 81.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from the Dayton VAMC from January 1977 to June 2006, and all VA treatment records from July 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.

2. The AOJ should obtain, if possible, the records of all private evaluations and treatment the Veteran has received for his disabilities. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified.

If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received.

3. The AOJ should attempt to retrieve all lost VA claim file documents prior to November 2005 by following the procedures as outlined in the VA Adjudications Manual, M21-1, III.ii.4.D.1.a-b. All steps taken should be noted in the record and, if no additional records are available, the reasons for unavailability should be noted and the Veteran so notified.

4. The AOJ should conduct an exhaustive search for any outstanding STRs and service personnel records, including the Veteran's DD 214, not already associated with the record. The AOJ should also contact the Veteran and ask him to submit any such records in his possession. If no additional records are available, the reasons for unavailability should be noted in the record and the Veteran so notified.

5. The AOJ should obtain in-patient hospital records from the Great Lakes, Illinois, Naval Hospital during the Veteran's military service. Relevant dates should be from December 1975 to April 1976. Because such records are presumably in the custody of a Federal department or agency, the amount of effort needed to be expended in obtaining these records is governed by 38 C.F.R. § 3.159(c)(2). If such records are not received pursuant to the AOJ's request, the Veteran should be so notified and the AOJ's efforts should be documented in the claim file.

6. The AOJ should submit a request to the Joint Services Records Research Center (JSRRC) (or other appropriate source) for any information that might corroborate the Veteran's reported stressors of:

(a) a near-death experience on the USS Talbot due to a fuel line leak (the Veteran was aboard the USS Talbot from April 1976 to January 1977), 

(b) being on a rescue mission when two pilots died in a plane crash on the deck of the USS Forrestal (the Veteran was aboard the USS Forrestal from January 1977 to September 1977), and 

(c) being aboard the USS Forrestal during a racial mutiny in 1976, which forced the ship to anchor in Norfolk Bay (even though the Veteran was not aboard the USS Forrestal in 1976, development should still be conducted for the time he was aboard the ship from January 1977 to September 1977).

Successive requests must be made to JSRRC (or other source) until the entire relevant time period has been considered. If the JSRRC responds that it is unable to comply with the request, or that any of the alleged stressors cannot be corroborated, the AOJ should produce a formal memorandum for the file documenting efforts to obtain this information.

7. The AOJ should ensure that all development necessary under VA's guidelines for processing a matter based on exposure to asbestos is completed, to include (but not limited to) ascertaining the circumstances and extent of the Veteran's exposure to asbestos while serving on the USS Talbot and USS Forrestal, if any, and whether he had any exposure to asbestos prior to, or subsequent to service (as well as the extent of any such exposure to asbestos). The AOJ should thereafter make formal findings for the record regarding the extent of the Veteran's exposure to asbestos in service and post-service.

8. After the above development has been completed, AND ONLY IF ANY STRESSORS ARE CORROBORATED, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's PTSD. The examiner should review the claim file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's PTSD is caused by or related to his military service? Please explain why. The examiner should discuss the Veteran's reported stressors.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

9. After the development in the first seven instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's pulmonary disability(ies). The examiner should review the claim file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

(a) Please identify, by diagnosis, any pulmonary disability shown by the record.

(b) For each disability, is it at least as likely as not (50% or greater probability) that the disability is caused by or related to the Veteran's military service? Please explain why. The Veteran's in-service hospitalization for pneumonia and (possible) asbestos exposure should be discussed.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

10. After the development in the first seven instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any TBI residuals. The examiner should review the claim file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

(a) Please identify whether the Veteran had a TBI and is currently experiencing residuals from that injury.

(b) If the Veteran had a TBI, is it at least as likely as not (50% or greater probability) that the disability is caused by or related to the Veteran's military service? Please explain why. The Veteran's reports regarding hitting his head on a gun mount in service should be discussed.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

11. After the development in the first seven instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's headaches. The examiner should review the claim file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's headaches are caused by or related to his military service? Please explain why. The Veteran's statements regarding his headaches being due to an in-service TBI and due to noise exposure from gun mounts should be discussed.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

12. After the development in the first seven instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the Veteran's insomnia. The examiner should review the claim file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

(a) Is the Veteran's insomnia a separate disability or a symptom of another of the Veteran's disabilities, such as his psychological disorders? Please explain why.

(b) If a separate disability, is it at least as likely as not (50% or greater probability) that the disability was either caused by or aggravated by the Veteran's service-connected stomach condition or his service-connected major depressive disorder and generalized anxiety disorder? The opinion MUST address whether the disability INCREASED IN SEVERITY BEYOND ITS NATURAL PROGRESSION (i.e., was aggravated).

If any disability is found to have been aggravated by the Veteran's service-connected disabilities, the examiner must specify, to the extent possible, the degree of additional disability resulting from the aggravation, indicating the "baseline" severity of such disability prior to any aggravation and the level of severity existing after the aggravation occurred.

(c) If a separate disability and not caused by or related to his service-connected disabilities, is it at least as likely as not (50% or greater probability) that the Veteran's headaches are caused by or related to his military service? Please explain why. The Veteran's reports of headaches resulting from an in-service TBI and from noise exposure during service should be discussed.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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. §§ 5109B, 7112 (2012).



_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs