Citation Nr: 18140110 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-43 373 DATE: October 2, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety disorder, and depressive disorder, is granted. REMANDED 1. The issue of entitlement to service connection for bilateral pes planus is remanded. 2. The issue of entitlement to service connection for bilateral hearing loss is remanded. 3. The issue of entitlement to service connection for tinnitus is remanded. 4. The issue of entitlement to service connection for irritable bowel syndrome (IBS) is remanded. FINDING OF FACT The probative evidence of record illustrates that the Veteran’s acquired psychiatric disorder is etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to March 1990, and from November 1990 to July 1991. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from June 2011 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has alleged additional psychiatric symptoms to those of his originally claimed PTSD, and has been diagnosed with depressive disorder and anxiety disorder. Accordingly, the issue on the title page reflects the expanded issue. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations discussed above, service connection for PTSD 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). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C. 1154(b) (2012). The regulation also contains specific provisions related to stressors not at issue here (combat, prisoner of war, and personal assault) and notes that lay evidence may enough to establish the in-service stressors in those situations. 38 C.F.R. § 3.304(f) (2017). During the appeal period, the Veteran has been diagnosed with depressive disorder, generalized anxiety disorder, and PTSD. See December 2013 Private Medical Opinion; October 2013 VA Examination Report. He has reported that he experienced traumatic events while stationed in Saudi Arabia. Specifically, he stated that he was involved in recovering Iraqi tanks, which were often dangerous. See October 2013 VA Examination Report. He also stated that he encountered dead bodies and feared for his life during this time. See September 2015 VA Examination Report. His military personnel records confirm that he was stationed in South West Asia and served in an imminent danger designated area. Additionally, the RO has conceded the reported in-service stressor. Thus, the Board finds his reports of in-service stressors to be credible. In a December 2013 private medical opinion, Dr. J. A. concluded that the Veteran’s PTSD was more likely than not related to his military service overseas. Dr. J. A. based this opinion on the Veteran’s reported in-service stressors, including seeing dead bodies, being near tank explosions, and fearing hostile military action. There is no medical opinion of record to contradict this opinion and the Board finds it probative. The Board acknowledges that the two VA psychological examiners did not find the Veteran to have a diagnosis of PTSD. However, the October 2013 examiner failed to consider the Veteran’s reports of in-service stressors while serving in Saudi Arabia. Additionally, the September 2015 examiner did, in fact, conclude that the reported stressors were related to hostile military activity. Thus, the Board finds that the VA examination reports do not weigh against the Veteran’s claim. Having reviewed the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is warranted. The Board observes that the evidence is at least in equipoise as to whether the Veteran’s exposure to in-service stressors is sufficient to support his current psychiatric diagnoses. In this regard, the finding is supported by the credible lay statements submitted by the Veteran regarding his exposure to in-service stressors, as well as the December 2013 evaluation submitted by Dr. J. A. The Board is particularly persuaded the private examiner’s conclusion that the Veteran’s PTSD is the result of his exposure to multiple traumatic events while in South West Asia and finds it to be the only probative opinion of record. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for an acquired psychiatric disorder are met. See 38 C.F.R. § 3.304(f).   REASONS FOR REMAND 1. The issue of entitlement to service connection for bilateral pes planus is remanded. The Board notes that the Veteran’s pes planus condition was noted on his July 1989 entrance examination, and that he contends it was aggravated by his military service. A VA examination was conducted in February 2011, at which time the examiner determined that the pes planus was not aggravated due to service. However, the examiner failed to use the correct standard of “clearly and unmistakably” when providing an opinion regarding aggravation. Additionally, the examiner failed to provide a rationale in support of his conclusions, and instead merely cited to “objective evidence” with no specific explanation of the evidence to which he was referring. Thus, the Board finds that a remand for an addendum opinion is warranted. 2. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are remanded. The Veteran was afforded a VA audiological examination in October 2013 to evaluate his claimed hearing loss and tinnitus. However, the examination report does not contain objective data for the pure tone threshold values and the speech discrimination scores. The examiner further indicated that the audiogram results were unreliable and unsuitable for rating purposes. Thus, the Board finds that the Veteran should be afforded a new VA audiological examination to obtain complete audiogram results and a new medical opinion regarding the etiology of his claimed hearing disabilities. 3. The issue of entitlement to service connection for IBS is remanded. The Veteran underwent a VA examination to evaluate his claimed IBS condition in September 2015. The examiner concluded that the Veteran did not have a diagnosis of IBS at that time, based upon a lack of objective evidence of such in his medical history and records. However, a private treatment record dated October 1997 clearly noted that the Veteran was diagnosed with IBS. Post-service treatment records further documented the Veteran’s reports of gastrointestinal symptoms on several occasions following separation from service. Additionally, the September 2015 Gulf War examination report indicated that the Veteran did not have an undiagnosed illness related to IBS. However, the opinion did not provide an actual diagnosis for the Veteran’s symptomatology. As the September 2015 opinion was based on an inaccurate factual basis, and the Gulf War examination report is unclear, the Board finds that a remand for an addendum opinion is warranted. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Arrange for the claims file to be reviewed by a qualified VA physician for an addendum opinion regarding the Veteran’s bilateral pes planus. Any additional VA in-person examination is left to the discretion of the VA physician. All indicated studies should be conducted and all findings reported in detail. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should opine as to whether the Veteran’s bilateral pes planus clearly and unmistakably pre-existed his active military service. If so, the examiner should opine as to whether there is clear and unmistakable evidence that such pre-existing pes planus did not undergo an increase in the underlying pathology, i.e., was not aggravated by his active military service. If there was an increase in severity of such disability during active military service, the examiner should opine as to whether that increase was clearly and unmistakably due to the natural progression of the disability. (B) If not, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran’s pes planus had its onset or is otherwise medically related to service. A complete rationale for all opinions offered should be provided. 3. Schedule the Veteran for an appropriate VA audiological examination to assist in determining the nature and cause of his bilateral hearing loss and tinnitus disorders. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner should provide opinions as to: (A) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral hearing loss disability is caused by or otherwise related to any event, illness, or injury during service. (B) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current tinnitus is caused by or otherwise related to any event, illness, or injury during service. In rendering an opinion, the examiner should assume as fact that the Veteran was exposed to excessive noise during active duty service from airplane engines, weapons, and artillery fire, to include as due to his MOS and from his tour of duty while stationed in Southwest Asia during Operation Desert Storm. A complete rationale for all opinions offered should be provided. 4. Arrange for the claims file to be reviewed by a qualified VA physician for an addendum opinion regarding the Veteran’s claimed IBS. Any additional VA in-person examination is left to the discretion of the VA physician. All indicated studies should be conducted and all findings reported in detail. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should identify all gastrointestinal or digestive conditions present since the instant claim (i.e. November 2010). (B) The examiner should render an opinion as to whether it is at least as likely as not that any diagnosed gastrointestinal condition had its onset or is otherwise medically related to service. (C) If no diagnosis can be made, then the examiner must provide an opinion regarding whether it is at least as likely as not that the Veteran manifests signs and symptoms of any undiagnosed illness, primarily manifested by gastrointestinal symptoms. If no diagnosis can be made, then the examiner shall also provide an opinion regarding whether it is at least as likely as not that the Veteran has a medically unexplained chronic multi-symptom illness, primarily manifested by gastrointestinal symptoms. A complete rationale for all opinions offered should be provided. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel