Citation Nr: 18157478 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-04 789 DATE: December 13, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for psychosis for the purpose of establishing eligibility for medical treatment under 38 U.S.C. § 1702 is denied. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to a total disability evaluation based on individual unemployability based on service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s current PTSD is related to his military service. 2. Although the Veteran served during the Vietnam era, he did not develop an active psychosis during active military service or within two years of separation from active military service. CONCLUSIONS OF LAW 1. The Veteran’s PTSD was incurred in active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to benefits for treatment purposes for a psychosis pursuant to the provisions of 38 U.S.C. § 1702 have not been met. 38 U.S.C. §§ 1702, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.384 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1968 to September 1970, and his awards and decorations include the Combat Action Ribbon and the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and February 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in July 2018. A transcript of that hearing has been associated with the claims file. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-5 (Fifth Edition). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). Because the Veteran’s PTSD claim was certified to the Board after August 2014, the regulations pertaining to the DSM-5 are for application. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See id. If a claimed stressor is not related to combat or fear of hostile or military activity, then a veteran's lay statements, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). See also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for PTSD is warranted. Initially, the Board notes that the Veteran served in Vietnam and was awarded the Combat Action Ribbon and the Purple Heart. During the July 2018 hearing, he described an incident during which he sustained shell fragment wounds. The Veteran was afforded a VA psychiatric examination in connection with a claim for sleep disorders in August 2002. At that time, he was diagnosed with an adjustment disorder with anxiety. The examiner noted that the Veteran reported some symptoms that would be consistent with PTSD, but stated that he was able to control those symptoms. Although the August 2002 VA examiner discussed possible PTSD symptoms, the report did not adequately address a possible PTSD diagnosis. The Veteran was later provided a VA examination in connection with his PTSD claim in April 2012. The examiner did not diagnose the Veteran with PTSD, as he found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD or any other mental disorder under the DSM-IV criteria. In November 2015, the Veteran submitted an evaluation from a private doctor, Dr. E.T. (initials used to protect privacy). After review of some medical records, an interview with the Veteran, and several diagnostic tests, Dr. E.T. diagnosed the Veteran with PTSD under the DSM-IV. Dr. E.T. opined that the Veteran’s PTSD symptoms were caused by his combat experience in Vietnam. He noted that the Veteran had no other trauma history either before or after his Vietnam service. He also stated that his ability to cope effectively with his symptoms had deteriorated with his advancing age. The Veteran subsequently underwent a diagnostic evaluation in June 2016 at a VA Medical Center. After the assessment, the doctor found that the Veteran’s profile was technically invalid due to the endorsement of a large number of atypically-endorsed items. She stated that it was perhaps due to the Veteran’s distress, which could lead to over-endorsed symptoms in order to receive help. She then opined that, upon review of the collective evidence, which included consideration of several disorders, a review of the medical records, and the results of the diagnostic testing, a diagnosis of PTSD was indicated. She noted that her diagnosis had been made according to the DSM-5. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a diagnosis of PTSD. Notably, the June 2016 VA physician made that diagnosis using the DSM-5 criteria, and it was based on the Veteran’s military combat stressor. Accordingly, the Board finds that service connection for the Veteran’s PTSD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Psychosis for Purposes of Eligibility for Treatment Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam Era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. The term “psychosis” is defined in 38 C.F.R. § 3.384 as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (DSM-5): (a) brief psychotic disorder; (b) delusional disorder; (c) psychotic disorder due to general medical condition; (d) other specified schizophrenia spectrum and other psychotic disorder; (e) schizoaffective disorder; (f) schizophrenia; (g) schizophreniform disorder; and (h) substance/medication induced psychotic disorder. Under 38 U.S.C. § 1702 (b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War. However, the Veteran in this case did not serve in the Persian Gulf War, as such 38 U.S.C. § 1702 (b) is not applicable here. Although the Veteran in this case served on active military duty from October 1968 to September 1970 during the Vietnam era, he does not meet the criteria under 38 U.S.C. § 1702 (a). Specifically, the evidence of record does not establish that he developed an active psychosis during active military service or within two years of his separation from active military service in September 1970. The Veteran’s service treatment records do not reveal any complaints, treatment, or diagnosis of psychosis. There is also no medical evidence of record of an active psychosis within two years of his separation from active military service. In that regard, the Board notes that the Veteran was evaluated by a neuropsychiatrist in December 1970, and no relevant diagnosis was rendered. Nor did the examiner note any disorientation, delusions, suspiciousness, or evidence of a thought disorder. The Board acknowledges the Veteran’s statements that he believes he began experiencing symptoms of PTSD in service. He is certainly competent to report his experience and symptoms in service and thereafter. Lay persons may provide competent testimony as to observable symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Nevertheless, the Board finds that the medical evidence of record is more probative in assessing whether the Veteran had developed an active psychosis during service or two years thereafter. In this case, the evidence of record simply does not show such a diagnosis or occurrence. Accordingly, the preponderance of the evidence is against eligibility for treatment for psychosis or mental illness under 38 U.S.C. § 1702. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran was most recently afforded a VA examination in connection with his hearing loss claim in May 2012. During the July 2018 hearing, the Veteran reported that his symptoms had worsened since that time. VA’s General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Medical records submitted by the Veteran appear to show that an audiogram was performed in January 2018 at a VA Medical Center; however, the actual audiogram is not of record, and it is unclear whether the speech discrimination testing used during that audiology test was the Maryland CNC test. In this regard, the Board notes that the controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test. 38 C.F.R. § 4.85(a). Therefore, the Board finds that an additional VA examination is needed to ascertain the current severity of his service-connected bilateral hearing loss. Upon remand, the AOJ should also attempt to obtain a copy of the January 2018 VA audiogram and any corresponding report. Further, as the Board has granted the claim for service connection for PTSD, the AOJ must effectuate that grant. In particular, the disability rating and effective date must be assigned. This award may affect the Veteran’s TDIU claim. Additionally, the Veteran’s TDIU claim is inextricably intertwined with the bilateral hearing loss claim being remanded herein, as this claim could also affect the outcome of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file, to include a copy of the January 2018 VA audiogram. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the severity and manifestation of the Veteran’s bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. He or she should also discuss the effect of the Veteran's hearing loss on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development and effectuating the grant of service connection for PTSD, the AOJ should consider whether the Veteran is entitled to TDIU. In so doing, the AOJ may decide to pursue further development of the Veteran’s employment history and/or obtain additional medical evidence or a medical opinion, as is deemed necessary. 4. The AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel