Citation Nr: 18143158 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-34 285 DATE: October 18, 2018 ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder; to include posttraumatic stress disorder, bipolar disorder, and/or depression. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder; to include posttraumatic stress disorder, bipolar disorder, and/or depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1971 to December 1974. This matter is before the Board of Veterans Appeals (Board) on appeal from November 2013 and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2017. A copy of the hearing transcript has been associated with the claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Board has recharacterized the appeal as encompassing the issue on the title page. 1. Entitlement to service connection for bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. A remand is necessary for additional development. By way of background, the October 2013 VA examination shows that the Veteran left the office without completing all of the necessary audiological testing. Next, the Veteran testified at the November 2017 hearing regarding his bilateral hearing loss disability and tinnitus claims. The VLJ raised the issue that the Veteran was found to have been uncooperative at the most recent VA examination. The Veteran explained that he became claustrophobic inside the testing booth. See November 2017 Hearing Transcript, p. 15. The VLJ explained the importance of cooperating with the VA examination, and the Veteran agreed. The Veteran, his representative, and the VLJ therefore agreed that a new VA examination was in order to fully evaluate the Veteran’s audiological disability and to obtain nexus medical opinion. The Board generally observes that VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 41 (2006); McLendon v. Nicholson, at 83. As the evidence of record is not sufficient to decide the claim, an additional audiological examination with medical opinion is necessary. Consequently, a remand is warranted. 3. Entitlement to service connection for an acquired psychiatric disorder; to include posttraumatic stress disorder, bipolar disorder, and/or depression is remanded. The Board incorporates its discussion from the section immediately above by reference. By way of background, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD) on February 19, 2014. On April 24, 2014, he submitted additional statements to support his claim. He averred that during live training fire, a solider turned around and started to shoot at everyone. The Veteran was most recently sent a related development letter on August 6, 2014. The letter requested additional detail to assist VA in fully developing his claim. As the RO has noted, to date, there has been no reply. Next, a VA Memorandum dated January 23, 2015 shows in part, “We have determined that the information required to corroborate the stressful events described by the veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for a meaningful research of Marine Corps or National Archives and Records Administration (NARA) records.” It notes that there have been several letters sent to the Veteran in 2014 to help substantiate his claim and verify his in-service stressor. “The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Later, in May 2016, VA received the Veteran’s Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault. The Veteran reported that the incident occurred in November 1973 at Fort Benning, Georgia. It shows in part, “I got extremely intoxicated and on the way back to the base there was a fight with some Caucasian soldiers from a different unit at Fort Benning. I got hit and fell down and either passed out from the alcohol or the hit and when I woke up I was being sexually assaulted by at least two individuals. All the other soldiers had left.” Next, the Veteran testified at the November 2017 hearing regarding his claimed stressors and acquired psychiatric disorders. The VLJ explained the elements of service connection, including the nexus requirement. The Veteran’s representative indicated that the Veteran spent his entire time during the Vietnam era at Fort Benning, Georgia. The Veteran testified, “Most of the time, yes.” The Veteran and his representative highlighted that although there was not a specific diagnosis of an acquired psychiatric disorder in service, the Veteran was discharged under honorable conditions and there were disciplinary problems. The Veteran reported that his mood had ups and downs. Regarding PTSD due to military sexual trauma (MST), the Veteran’s representative highlighted that an October 2017 progress note showed a diagnostic impression of “PTSD complex from MST.” The Veteran then clarified that the alleged incident took place in “October early on,” though he was subsequently affected later in his military career. The Veteran described being divided up socially by race during service. The Veteran’s representative asserted that the culture at the time did not allow the Veteran to easily present for treatment after being sexually assaulted, hence the lack of contemporaneous evidence of record. The VLJ identified that the Veteran has also not been afforded a VA examination related to his bipolar disorder claim. The Veteran’s representative and VLJ discussed that there are some diagnostic impressions of bipolar disorder and MST, but still no nexus medical opinions of record. Therefore, they agreed that additional development was necessary. The Veteran and his representative also submitted a June 2018 letter from Family Counselling & Consulting, LLC. It shows diagnostic impressions of PTSD symptoms and major depression related to sexual assault in the military. It also shows that the Veteran has a history of drug and alcohol use, and continues to struggle with alcohol use. It does not show that the claims file was reviewed, or render a complete nexus medical opinion. The Board observes that there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-4/5). If a PTSD claim is based on Military Sexual Trauma (MST) or personal assault in service, evidence from sources other than the Veteran’s records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Mengassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Here, although we note the private medical opinions identifying PTSD, and the Veteran’s service at Fort Benning during the Vietnam era, additional development is necessary. In particular, for PTSD, there are essentially two avenues for entitlement: a link, established by medical evidence, between current symptoms verified in-service stressors, and/or a VA psychiatrist or psychologist confirming that the claimed stressor(s) is/are adequate to support a diagnosis of PTSD pursuant to 38 C.F.R. § 3.304 (f)(3). Here, the Veteran’s theory of entitlement is based on an incident that occurred at Fort Benning, and not based upon a theory fear of hostile or military terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304 (f)(3). Consequently, only the first theory of entitlement above is applicable to the instant case with respect to the claim for service connection for PTSD. First, there are currently no corroborated stressors linked to the diagnosis provided in the private medical opinions. In other words, even though the diagnosis of MST due to PTSD and bipolar disorder may show evidence of disability, the diagnosis alone is not sufficient to establish service connection for PTSD. Indeed, 38 C.F.R. §§ 3.304 (f) and 4.125 (a) require not only a diagnosis, but also credible supporting evidence that the claimed in-service stressor occurred, in other words, corroborated stressor(s), and a link between the current symptomatology and the claimed in-service stressor(s). There are also insufficient details to corroborate the event described by the Veteran in 2014 regarding a solider attempting to shoot others. Second, with regard to claims of service connection for PTSD based upon personal assault, 38 C.F.R. § 3.304 (f)(5) provides in pertinent part, “If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident.” Examples of such evidence relevant to this Veteran’s allegation could include statements from family members, roommates, fellow service members, or clergy. Examples of behavior changes following the claimed assault would also be relevant. VA may not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may then 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). Therefore, it follows that additional development is necessary to attempt to corroborate the Veteran’s various claimed in-service stressors, and to afford the Veteran a VA psychiatric examination. The Board observes that the incident involving personal assault at Fort Benning described at the November 2017 hearing appears to be the basis for the Veteran’s current theory of entitlement. Consequently, the Board finds that a remand is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, any outstanding VA treatment records since 2016 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain updated copies of the Veteran’s VA treatment records and any new private treatment records identified by the Veteran, and associate them with the claims file. 2. Make one more attempt to fully corroborate the Veteran’s in-service stressors. If more details are needed, contact the Veteran to request the information. If the Veteran fails to respond, the case will be adjudicated based upon the evidence of record. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral hearing loss disability and/or tinnitus. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The examiner should provide a rationale for all opinions expressed. If the Veteran fails to fully cooperate at the examination, the case will be adjudicated based upon the evidence of record. 4. After, and only after, completion of steps one through two above, and after the Veteran’s reported stressor(s) have been developed, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), MST, depression, and bipolar disorder. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough examination, as well as any diagnostic studies deemed necessary, the VA examiner should offer an opinion as to the following: (a) If the Veteran is diagnosed with PTSD, is it at least as likely as not related to a verified in-service stressor? (b) If PTSD is diagnosed based upon the claimed in-service personal assault stressor, is it at least as likely as not (50 percent or greater probability) that the in-service personal assault occurred? The VA examiner should identify the nature of the evidence used to reach that opinion. (c) As to any other diagnosed acquired psychiatric disorder(s), is it at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during military service or is otherwise related to military service? The examiner’s attention is invited to the Veteran’s lay stressor statements referenced at the hearing and in the claims file. The examiner’s attention is also invited to the June 10, 2018 private medical opinion with associated treatment records from Family Counseling and Consulting, LLC. The VA examiner may comment on the Veteran’s history of drug and alcohol use, as highlighted by the June 10, 2018 private medical opinion. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. (Continued on the next page.) 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel