Citation Nr: 1803225 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-30 592A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for low back disorder. 3. Entitlement to service connection for bilateral knee disorder. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for a non-PTSD psychiatric disorder, to include major depressive disorder. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from May 1989 to September 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board notes that the issue on appeal was originally characterized by the RO as service connection for a personality disorder (also claimed as depression). The Veteran then submitted a fully developed claim for PTSD and depression in January 2017. In light of the Veteran's assertions and the evidence of record, the Board has recharacterized the issues as reflected on the title page. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Remand is required to obtain private treatment records and to afford the Veteran VA examinations. First, remand is required to obtain private treatment records regarding the low back disorder, bilateral knee disorder, and psychiatric disorders. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1) (2017). In the September 2017 Board hearing, the Veteran testified that he is currently receiving treatment from a chiropractor in Troy, Alabama, and had been receiving psychiatric treatment for over a year. No attempts to obtain these recent records have yet been made. An attempt to secure these records should be made on remand. Second, regarding the claim for a low back disorder and bilateral knees disorder, the Veteran should be afforded VA examinations. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Regarding the low back disorder, the Veteran submitted private treatment records with diagnoses of lumbalgia, thoracalgia, and segmental and somatic dysfunction of the lumbar region. At the September 2017 Board hearing, the Veteran provided competent testimony that he hurt his back while changing tires and during incidents of forced marches where his back would lock-up after completion. The Veteran testified that during service, he experienced symptoms of swelling, pain in the lower back, and his back locking. The Veteran reported that he self-treated his symptoms using over-the-counter medications and heat rubs. The Veteran also testified that the symptoms of pain, swelling, and locking have continued since service. Therefore the Veteran should be given a VA examination as there are current diagnoses and his testimony of in-service symptoms and continuity of symptoms. Regarding the claim for bilateral knees disorder, the Veteran testified that his knees have worsened since service and he currently experiences swelling and difficulty bending his knees. The Veteran testified that during service, his knees would lock up during formations and that he self-treated his symptoms with medications and heat. The Veteran testified that during service, he experienced wear and tear on his knees because his military occupational specialty (MOS) as an auto mechanic required bending and squatting. An in-service report of medical history noted "trick" or locked knee and that his knees lock and pop, and he feels pain after he engages in physical activities like running. Given the Veteran's current symptoms, and his testimony and in-service notation of knee trouble, the Veteran should be afforded a VA examination. Third, regarding the claim for service connection for left ear hearing loss, remand is required to afford the Veteran a VA examination. The Veteran was last afforded a VA audio examination in January 2011. At the time the Veteran did not have a hearing loss disability for VA purposes. At the September 2017 Board hearing, the Veteran testified that his hearing loss has worsened since his last VA examination. Accordingly, as it has been approximately 7 years and the Veteran may have a current disability, this issue must be remanded for a new examination. Fourth, the claims for service connection for PTSD and a non-PTSD psychiatric disorder must be remanded for development and a new examination. Regarding the non-PTSD disorders, a new examination is warranted. In April 2011, the Veteran was afforded a VA examination. The examiner noted that the Veteran did not meet the criteria for diagnoses of depressive disorder or a personality disorder. But in a January 2017 private treatment record, after obtaining a detailed bio-psychosocial history from the Veteran, and upon mental status examination, a diagnosis of recurrent moderate major depressive disorder was provided. The examiner did not, however, provide any nexus opinion. Accordingly, an opinion in this regard must be obtained. Regarding the claim for PTSD, there has been no attempt by the RO to verify any of the Veteran's alleged stressors. In February 2017, the RO requested that the Veteran provide additional information regarding his claimed stressor events, which the Veteran provided. However, no additional development was thereafter undertaken as the RO notified the Veteran in April 2017 that his claim for PTSD was inextricably intertwined with the existing appeal for major depressive disorder. Accordingly, the Board finds that a remand is warranted for the agency of original jurisdiction (AOJ) to undertake any necessary development to attempt to verify the Veteran's alleged stressors. Additionally, the Board notes that the Veteran was afforded a VA examination for mental disorders, but not for PTSD. A review of the Veteran's private treatment records, reveal a diagnosis of PTSD. The Veteran reported that he had nightmares relating to experiences in the military. In his stressor statement and at the Board hearing, the Veteran reported three stressors: 1) being placed in a mental hospital while in Okinawa in October 1993; 2) in August 1990 being placed on missile lock on the USS Nashville during the Gulf War and believing the ship might be sunk; and 3) the USS Nashville being diverted to Africa where there was a civil war going on. The Veteran testified that he experienced nightmares and suicidal thoughts and still experiences those thoughts. The Veteran also testified that he sleeps two to four hours a night due to nightmares, and recently woke up to find that he put his wife in a headlock. Based on this evidence, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. McLendon, 20 Vet. App. at 83. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Obtain the Veteran's service personnel records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Take all necessary steps to verify the following: 1) whether the Veteran was placed in a mental hospital in Okinawa; 2) the USS Nashville was under missile lock and 3) that the USS Nashville was diverted to Senegal for a month during a civil war and the Veteran witnessed locals being killed. These stressors are described in detail in a May 2017 statement from the Veteran and in a September 2017 Board hearing transcript. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 4. Create a summary of any verified in-service stressors, and provide this to the VA examiner. 5. After any additional records are associated with the claims file, obtain an appropriate mental disorders examination. This examination must be conducted by a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist. The entire claims file must be made available to and be reviewed by the examiner, including the summary of in-service stressors discussed in Instruction 4, above. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Regarding the claim for a non-PTSD psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's depressive disorder and any other currently diagnosed psychiatric disability at least as likely as not (a 50% or more probability) had onset in, or is otherwise related to active service. If the examiner finds that there is no psychiatric disorder, then the January 2017 private treatment record that diagnosed depressive disorder must be expressly commented on. The examiner must address the relevant service treatment records (STRs) including the following: 1) a May 1994 record showing the Veteran was admitted for psychiatric treatment and diagnosed with severe dependent personality disorder with passive aggressive features after admitting to having suicidal thoughts and being extremely emotional about wanting to go home; and 2) a June 1994 separation report of medical examination, listing dependent personality disorder. Regarding the claim for PTSD, the examiner must express an opinion as to whether the Veteran meets the criteria for PTSD. If the examiner finds that the Veteran does not meet the criteria, then the January 2017 private treatment record that provides a diagnosis of PTSD must expressly be commented on. If the examiner finds that the Veteran meets such criteria, the examiner must provide an opinion whether PTSD can be related to the stressor or stressors 1) established as having occurred during active service and 2) claimed by the Veteran that are adequate to support a diagnosis of PTSD based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any left ear hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss had onset in, or is otherwise related to, active service. In providing this opinion, the examiner must discuss medically known or theoretical causes of hearing loss and describe how hearing loss which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss were caused by noise exposure in service as opposed to some other cause. The examiner must also address the Veteran's testimony from the September 2017 Board hearing that hearing protection was not available and he realized that his hearing got worse particularly after working with impact wrenches. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder and bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed low back disorder, at least as likely as not (a 50% or more probability) had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the Veteran's STRs; 2) the Veteran's September 2017 hearing testimony that he hurt his back while changing tires and during incidents of forced marches where his back would lock-up after completion and that symptoms of pain, swelling, and locking have continued since service and have remained constant; and 3) the private treatment records diagnosing back disorders. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed bilateral knee disorder, had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the April 1994 Report of Medical History, where the Veteran indicated he experienced "trick" or locked knee and noted that his knees sometimes lock and pop a lot, and he feels pain after runs, humps, etc.; 2) the September 2017 Hearing transcript where the Veteran testified his knees have worsened since service and he currently experiences swelling and difficulty bending his knees and that he experienced wear and tear on his knees because his MOS as an auto mechanic required bending and squatting. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 9. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 10. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ K. MILLIKAN 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).