Citation Nr: 18160068 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 15-05 699 DATE: December 21, 2018 ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss (BHL). 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depression. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for BHL is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disability to include PTSD and major depression is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1999 to September 2004. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned during a July 2018 videoconference hearing. A copy of the transcript is of record. During this hearing, the record was held open for 60 days, until September 17, 2018, to allow the submission of additional evidence. Subsequently, in October 2018, the Veteran submitted a statement in support of his claim for PTSD and an August 2018 PTSD disability benefits questionnaire. This evidence must be reviewed by the RO on remand. The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. Initially, the Board notes that the Veteran filed his service connection claim for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court’s decision in Clemons, the Board has re-characterized the PTSD issue on appeal as entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, as VA treatment records show diagnoses to include major depression and PTSD. This will provide the most potentially favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. The Veteran contends that service connection is warranted for the disabilities on appeal as they are related to or had their onset in service. Specifically, the Veteran contends that BHL and tinnitus are related to his duties as an unmanned aerial vehicle (UAV) systems organizational maintenance technician, confirmed as his military occupational specialty by his DD Form 214, and weapons training. As to the issue regarding a low back disability, the Board notes that service treatment records, to include from March 2004, show complaints of back problems since 2002. As to the issue regarding the Veteran’s acquired psychiatric disability, as noted above, he submitted a stressor statement in October 2018 and testified before the undersigned as to experiencing friendly fire in February 2003 in Yuma, Arizona, while taking part in Harrier maintenance; in December 2003, in connection with VC6 Detachment Patuxent River Duty, he saw a fellow soldier administer aid to a car accident victim; and with the same unit assignment, he saw a man commit suicide by jumping off a bridge. The Board notes that the Veteran’s DD Form 214 shows that his last duty assignment and major command was with VC6 Detachment Patuxent River. The Board finds that the RO should attempt to verify these stressors on remand. The Veteran was scheduled for VA examinations in connection with his claims on December 2012 and March 2013, but he failed to report. However, the Veteran asserts, and testified before the undersigned, that he requested that the examinations be rescheduled due to scheduling conflicts that prevented him from being able to attend the examinations. He stated that his job requires him to be out of state and that it was difficult for him to attend examinations on multiple days. The record shows that in March 2013 the Veteran called to cancel his examinations as he was traveling to California. However, the Veteran was not rescheduled for VA examinations in connection with his claims. As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo VA examinations in connection with his appeal. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655(2017). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. Finally, the Board notes that the Veteran indicated in testimony before the undersigned that there were outstanding treatment records from Walter Reed Hospital from 2005 and from W.F.M. As such, these records should be sought on remand. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s claimed stressors, which include: a) experiencing friendly fire in February 2003 in Yuma, Arizona, while taking part in Harrier maintenance; b) seeing a fellow solider administer aid to a car accident victim in December 2003 with the VC6 Detachment Patuxent River Duty; and c) with the VC6 Detachment Patuxent River Duty, seeing a man commit suicide by jumping off a bridge. 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims, to specifically include Walter Reed Hospital records from 2005 and treatment records from W.F.M. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 3. To the extent possible, it is requested that the three examinations ordered below be scheduled on the same day. 4. After the above development is completed, schedule the Veteran for VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed low back disability. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any low back disability diagnosed during the pendency of this appeal, had its onset in service or is otherwise etiologically related to service, to include complaints of back problems in service. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Schedule the Veteran for VA examination conducted by appropriate health care provider to determine the nature and etiology of his claimed BHL and tinnitus. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any BHL and tinnitus diagnosed during the pendency of this appeal, had their onset in service or are otherwise etiologically related to service, to include as due to his duties as a UAV systems organizational maintenance technician and weapons training. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382. 6. After the above development, including specifically the stressor development in item 1, has been completed, schedule the Veteran for VA examination conducted by psychologist or psychiatrist to determine the nature and etiology of his claimed acquired psychiatric disability. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The RO must specify for the examiner the stressor or stressors which it has determined are established by the record, if any. The examiner must be instructed that only those events that have been verified (or otherwise accepted by the RO) may be considered for the purpose of determining whether the Veteran was exposed to a stressor in service. The examiner should address the following: a) Indicated whether the Veteran has a diagnosis of PTSD that conforms to the DSM-V criteria. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of the other previous diagnoses of PTSD of record. b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran’s PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-V are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. c) The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any acquired psychiatric disability diagnosed during the pendency of this appeal to include major depression had its onset in service or is otherwise etiologically related to service. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel