Citation Nr: 1804210 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-07 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a psychiatric disorder. 4. Entitlement to service connection for a stomach condition, to include as due to a psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated July 2010 and April 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In December 2013, the Veteran was afforded a videoconference hearing before the undersigned. This case was remanded in October 2014 and November 2016 for additional development. It is again before the Board for further appellate review. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence of record does not show that the Veteran's psychiatric disorder began during, was otherwise caused by, or is etiologically related to his active service. 2. Service connection on a secondary basis is denied as a matter of law; the competent and credible evidence of record does not show that the Veteran's stomach condition began during, was otherwise caused by, or is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection - Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). II.a. Psychiatric Disorder - Background The Veteran contends that he has a current psychiatric disability related to service. Service treatment records do not reflect any treatment for or diagnosis of a psychiatric disorder. At discharge, the Veteran had a normal psychiatric examination, and was determined to be qualified for retention. His separation Report of Medical History reflects his denial of depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. The Veteran underwent a VA examination in December 2010. He reported that the symptoms began in 1974 after his mother passed away. He began to feel guilty for not being there for her while he was in the service. He made a hardship application that was denied. In 1972, his supervisor pilot was shot down. He was close to the pilots who saw the chute of his supervisor go into the sea. He was very distressed about this matter. He reported that, while watching war movies he had recollections about this event and began to feel anxious. For many years he was unable to identify the cause of his distress but feels that event had a part in it. After his father died in 2009 he began to think about mortality and a psychologist told him that he needed counseling. The Veteran reported traumatic events since leaving the service included two major automobile accidents while intoxicated-one resulting in major injury to a passenger in 1976. The examiner diagnosed alcohol dependence in partial remission and generalized anxiety disorder. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. Medical records showing treatment from the Vet Center beginning in March 2011 reflect that the Veteran reported that his symptoms were related to employment issues and phase of life issues. At his initial assessment in March 2011, the Veteran reported recent job stress due to a reorganization. He had a daughter in college out of state who was doing well but Veteran feels loss of her growing up. Both his brother and father died since 2008. He had gastric bypass surgery approximately one year prior which was a major adjustment. In April 2011, the examiner noted that the Veteran had some trouble identifying issues, and that he possibly viewed therapy as more of a sounding board. He reported that his work situation had improved. In May 2011, the Veteran reported stress related to getting a letter letting him know that his VA disability claim was denied. At that point, the Veteran described more of his Vietnam experience when his supervisor was killed. He was also treated poorly by protestors upon his return home. He reported feeling bitterness regarding his Vietnam experience. In July 2011, the Veteran reported anxiety and frustration regarding his work situation as he felt he was in limbo about a decision regarding early retirement. The provider noted that he was somewhat unclear on what Veteran wanted from treatment and felt that it was perhaps to air his feelings and concerns. In August 2011 the Veteran reported that he wished to come in every three weeks or so to vent about his phase of life issues. He indicated that he was better than when he first came in and no longer felt depressed or anxious. In November 2011, the Veteran noted that he was frustrated that he was turned down for refinancing of his house. In January 2012, the Veteran reported feeling more anxious as his daughter was in Spain and there was still a delay in his retirement plans. In February 2012, the Veteran talked about the negative impact of his military service. He felt devastated by how he was treated upon his return and learned not to talk about his Vietnam experience. A VA examination was provided in April 2011. The examiner opined that the Veteran's generalized anxiety disorder was not caused by or a result of military service. He indicated that he could find no evidence from the Veteran's military records, his statement of support for his claim, post-service medical records, or examination that would link symptoms to his claimed stressors. The examiner opined that the Veteran's problems began after discharge from military service due to stress. He indicated that his symptoms were not present until the late 1970's. While the Veteran reported that he felt guilt about not being around for his mother and for the death of his supervisor, he did not report symptoms consistent with generalized anxiety disorder either at the time of the events or thereafter. The examiner found that the Veteran's symptoms of generalized anxiety disorder appeared to have stemmed from the deaths of his father and brother in a short period of time. In his statement of support for the claim he mentioned fearing he would be next to die if he did not begin to take care of himself. A January 2015 VA examiner found that the Veteran did not meet the criteria for a psychiatric disorder. He found that there was not sufficient evidence on examination to meet the diagnostic criteria for any mental health disorder related to military service, given a lack of documentation in his service treatment records reflecting mental health concerns or treatment for such issues, including his April 1974 separation exam indicating lack of psychiatric symptoms and subsequent fitness for retention on active duty. While the examiner understood from the Veteran that he was receiving counseling for depression, the Veteran stated that the depression began in 2010 following a job reassignment. The Veteran was provided with a VA examination in December 2016. The examiner diagnosed generalized anxiety disorder, persistent depressive disorder, and alcohol use disorder. The Veteran reported that during his second tour, his division supervisor was shot down and was declared missing in action but was eventually determined to be killed in action. He was around fellow service members who witnessed the incident and heard them talking about it. His mother was diagnosed with cancer in 1973 and died in 1974. He tried to get out on a hardship discharge, but was denied. He indicated the he had a hard time with his mother's death. The examiner noted that VA medical records documented that the Veteran participated in individual therapy from March 2011 to February 2012. The records reflected that the target problems were anxiety and depression that were described as being secondary to work- and retirement-related stress and other recent psychosocial problems, including social isolation and bariatric surgery he had undergone one year prior, although they noted that he reported having had negative experiences related to his service in Vietnam after returning home. The examiner also noted that VA medical records showing treatment since September 2013 indicated that the target problems were anxiety, depression, and alcohol problems, which had been described as being secondary to various psychosocial problems, including difficulties with family and social relationships and the deaths of family members. They reflected the Veteran's reports that he did not like to think or talk about his military experiences, that he had issues with crowds because of his experiences, and that he reported he was treated badly upon returning from Vietnam. Diagnoses of record include Generalized Anxiety Disorder and Depressive Disorder Not Otherwise Specified. The examiner opined that it was less likely than not that the Veteran's mental health conditions were related to, or had their onset during, his military service. He found no evidence of mental health diagnoses, evaluation, or treatment in the Veteran's service treatment records to suggest that his mental health difficulties had their onset during service. The examiner noted that evidence from other records and from the interview with the Veteran indicated that he reported some symptoms that he had retrospectively described as being related to his military service (e.g., distressing memories, feelings of guilt). However, the examiner observed that the Veteran had provided varying accounts of the onset, the course of, and the precipitating factors in his mental health conditions, making it difficult to draw conclusions regarding their relationship to his military service without resorting to speculation. Finally, evidence from his treatment records indicated that the targets of intervention had been issues related to recent and current psychiatric-social stressors. II.b. Psychiatric disorder - analysis The medical evidence of record clearly shows that the Veteran has a current diagnosis of a psychiatric disorder, meeting one of the fundamental requirements of service connection. Brammer, supra. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, attributes his psychiatric disorder to service. In terms of evidence providing an etiology between the Veteran's current psychiatric disorder and his time on active duty, the Board notes that there is no medical evidence which provides such a link. The examiner who provided the December 2016 VA examination report opined that the Veteran's psychiatric disorder was not related to service. This examiner addressed the Veteran's self-reported history, his treatment history, including the medical records added from the Vet Center, and results from the current mental examination and interview, and provided a thorough rationale for all findings. For these reasons, the Board finds that this examination is highly probative. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner found that the Veteran's current psychiatric disorder is not related to service. This opinion is supported by the Veteran's normal psychiatric examination at discharge and his simultaneous Report of Medical History reflecting a denial of depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. There is no competent evidence of record relating the Veteran's current psychiatric disabilities to military service. The Board finds the Veteran's lay statements attributing his current psychiatric disabilities to events during military service to not be competent evidence in this case. Although lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The question regarding the potential relationship between the Veteran's currently diagnosed psychiatric disorders and any instance of his military service is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). There is no evidence in the record that the Veteran has the requisite medical expertise to provide an opinion as to the issue in this case. As the competent evidence of record weighs against the Veteran's claim, the Board finds that service connection for a psychiatric disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a psychiatric disorder. Therefore, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. III.a. Stomach Condition, to include as due to a psychiatric disorder - Background The Veteran has contended that he has a stomach disorder that is secondary to stress, which is inherent in his psychiatric disorder. Service connection may be provided for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). However, in this case, because the Veteran's claim for entitlement to service connection for s psychiatric disability has been denied, it follows that the secondary service connection claim fails as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). As to service connection on a direct basis, the Board finds that there is no evidence to support this theory of entitlement. The Veteran's service treatment records do not reflect any treatment for or diagnosis of a stomach disability. The Veteran's separation Report of Medical History reflects his indications that he did not have any stomach trouble or frequent indigestion. His separation Report of Medical Examination was normal. Private medical records reflect that, in July 1993, the Veteran was diagnosed with moderate superficial gastritis and a hiatal hernia with gastritis. VA medical records reflect that, in April 1994, the Veteran was treated for several-year history of gastric reflux with hiatal hernia. The Veteran reported that he had been previously treated for Helicobacter. VA and private medical records show that the Veteran had undergone ongoing treatment for his gastrointestinal issues. However, these records do not link the Veteran's current stomach or gastrointestinal issues directly to service. Moreover, the Veteran has not contended that his claimed stomach disorder is directly related to, or was incurred during, active duty service. As the evidence of record does not link any current stomach disorder to service, service connection on a direct basis is denied. ORDER Service connection for a psychiatric disorder is denied. Service connection for a stomach condition, to include as due to a psychiatric disorder, is denied. REMAND While the Board regrets additional delay, further development is required in order to appropriately fulfill the VA's duty to assist with regard to the Veteran's claims for entitlement to service connection for hearing loss and tinnitus. In its October 2014 remand, the Board noted that the Veteran had been afforded a VA audiological examination in July 2010, but that it was inadequate, as the examiner failed to adequately discuss the threshold shift in hearing acuity between entrance and audio testing in December 1971, which reflected a shift in thresholds to the extent that it met the criteria for a hearing loss under 38 C.F.R. § 3.385, and his reports of having hearing loss and tinnitus shortly after service. As such, the Board again remanded the claim in November 2016, in order to obtain an addendum opinion addressing these issues. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The requested opinion was provided in December 2016. The examiner noted that the Veteran's military occupational specialty (MOS) was as aircraft carrier duty/squadron duty. The examiner found that, although the Veteran's MOS was considered at a high probability for noise exposure, thresholds evaluated at induction and separation of active duty did not demonstrate any significant change during the period of active service. The examiner noted that damage to the hearing system was a real-time event and thresholds would demonstrate significant changes if damage was present. However, the examiner did not specifically address the results of the December 1971 audiometric testing in the Veteran's service treatment records, which reflected a definite shift in threshold values and reflected hearing loss as defined by VA regulations. In addition, the examiner did not address the Veteran's reports of having symptoms of hearing loss and tinnitus shortly after service. These issues were specifically addressed in the Board's prior remands, and must be addressed in an addendum opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from the VA examiner who provided the December 2016 opinion to determine the current nature and likely etiology of right and left ear hearing loss and tinnitus. Based on the review of the record, the examiner should answer the following: Is it at least as likely as not (a degree of probability of 50 percent or higher) that any current hearing loss in either the right or left ear and/or tinnitus had its onset during active service or is related to any in-service event, disease, or injury, to include the Veteran's exposure to loud noise during service? The examiner must discuss the threshold shift in the Veteran's hearing acuity from entrance to December 1971 and the results of the audiological examination on separation in 1974 and the Veteran's reported history of having hearing loss and tinnitus right after service. The examiner must specifically address the December 1971 audiogram results that appear to show hearing loss as defined by VA regulations. The examiner must also address the Veteran's contentions of experiencing symptoms of hearing loss and tinnitus shortly after military service. If the examiner finds that any current hearing loss is not related to military service solely because the Veteran's hearing was normal upon discharge/separation from service, the examiner must explain why normal hearing upon discharge would render it less likely than not that the current hearing loss is related to service, particularly given the December 1971 audiogram results showing hearing loss consistent with VA regulations. The examination report must include a complete rationale for all opinions expressed. 2. Readjudicate the issues on appeal. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs