Citation Nr: 1806544 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from June 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2017, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The claims file is in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. The Veteran underwent VA psychology evaluation in February 2011 at which time he noted that he wanted to discuss whether or not he likely had PTSD because his neighbors were encouraging him to file for compensation. The examiner noted that the Veteran reported that he experienced a number of qualifying events which met event criteria during his service in Vietnam and that he endorsed one avoidance symptoms but did not endorse any arousal symptoms. The evaluator, a VA elemental health psychologist, noted that the Veteran presented himself with some minor subclinical symptoms of PTSD that did not meet full criteria. The psychologist noted that the Veteran had been in a stable marriage for several decades, did not suffer from irritability or anger problems and slept well. The psychologist noted that the Veteran's neighbor had told him that he should apply for compensation because he was in Vietnam. The examiner noted that he informed the Veteran that based on the information he gave him, he did not appear to be suffering from PTSD, particularly since he acknowledged no distress. The psychologist did not diagnose a clinical disorder on Axis I. The Veteran underwent VA examination in May 2012 at which time the examiner reported, Basic training was ok other than being very hot. He didn't have to repeat it. After that he was sent for training doing helicopter repair work. "It was tough because of all the reading," but vet made it through the training program. (He brings in a formal certificate attesting to his graduating from this class). He was then sent to Vietnam 1/69-1/71. (He volunteered to stay longer than usual though there was a 4 week leave period at home). He was about 30 mi NW of Saigon at Phui Loi, a large helicopter air base. He did a month of perimeter guard duty, then was assigned to do helicopter repair on Chinooks. After that he was asked if he'd like to be a door gunner, which he agreed to. Within weeks he was transferred to being a flying crew chief instead. For his last year he was listed as a flight engineer. He did a lot of "hands on" work. Over his time in VN, he lost 8 friends (all in maint[e]nence) due to a variety of accidents. He was assigned to several recovery operations to retrieve remains from downed helicopters. From these he also recovered injured personnel and bodies as well as equipment. He recalls bringing body bags back to Ton Son Hut AFB. All told he had 1300 hours of flight time (he brings in army records supporting this). He was in several combat engagements, being shot at 10 times or so. He volunteered to do a second tour in VN so as to get out of the army early. He was discharged immediately on his return from VN. He had never had an episode of LOC while on active duty. He was not injured in combat though there were some close calls with incoming fire. After review of the file and interview with the Veteran, the examiner noted that the Veteran did not meet the DSM-IV criteria for PTSD but that he did meet the diagnostic criteria for alcohol abuse. In the present case, the Board notes that the May 2012 VA examiner considered the diagnostic criteria for PTSD under DSM-IV. Due to the changes to the DSM that are applicable, the claim must be remanded, and the examiner should consider both the DSM-IV and DSM-5 criteria on examination. The Veteran seeks service connection for tinnitus. At the Veteran's first VA physical evaluation in February 2011, he noted some tinnitus that he wished to be evaluated. In August 2011, the Veteran underwent VA audiology consultation at which time he denied history of ear infections, other otologic problems (ear surgery, aural pain, drainage/fullness), and tinnitus. At the Veteran's VA examination in May 2012, the examiner noted that the Veteran did not report recurrent tinnitus. At the April 2017 Board hearing, the Veteran essentially testified that he had ringing in his left ear in service and intermittently since service. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As service connection has been established for hearing loss, an opinion should be obtained as to whether the Veteran's tinnitus is in anyway related to his hearing loss. The Veteran seeks a higher initial rating for his service-connected hearing loss. The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100 for hearing impairment. Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist, and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. Examinations must be conducted without the use of hearing aids. Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Pure Tone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores. The Veteran underwent VA audiology consultation on August 5, 2011 at which time he reported difficulty hearing his wife in conversion and that he had been tested privately over ten years prior and told he was a hearing aid candidate. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 50 65 LEFT 10 10 25 50 65 The average pure tone threshold for the right ear was 39 decibels, and speech recognition in the right ear was 96 percent. The average pure tone threshold for the left ear was 39 decibels, and speech recognition in the left ear was 88 percent. The examiner noted that test results indicated hearing within normal limits through 2000 Hertz sloping to a moderately severe sensorineural hearing loss in both ears and that high frequency responses (beyond 2000 Hertz) might be slightly elevated because the Veteran was difficult to test and had high false positive rate. The examiner noted that word recognition ability in quiet was excellent in the right ear and good in the left ear. The Veteran underwent VA audiological examination in May 2012 at which time he reported difficulty hearing sometimes in background noise. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 20 45 65 LEFT 15 20 30 50 70 The average pure tone threshold for the right ear was 34 decibels, and speech recognition in the right ear was 94 percent. The average pure tone threshold for the left ear was 42 decibels, and speech recognition in the left ear was 94 percent. In support of his claim, the Veteran submitted a December 2016 private audiogram in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 30 55 75 LEFT 20 15 50 60 75 Although it is unclear whether speech discrimination was Maryland CNC test was utilized, it is suggested that the Veteran's hearing underwent some increase since his VA examination in May 2012. As it has been a number of years since the last VA examination, the evidence of record is clearly stale. The Court has impressed on VA on many occasions the necessity of obtaining a recent VA examination. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. Thus, the Veteran should be scheduled to undergo VA examination to determine the current severity of his hearing loss. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received VA or non-VA medical treatment for any psychiatric disorder, hearing loss, or tinnitus that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. All attempts to obtain records should be documented in the claims file. 2. The Veteran should be afforded a VA psychiatric examination. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the Veteran meets the DSM-IV or DSM-5 criteria for PTSD, the examiner is asked to list all stressful events contributing to that diagnosis. If the Veterans meets the DSM-IV or DSM-5 criteria for any other diagnosed psychiatric disorders, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder had its onset in service or is otherwise related to service. 3. The Veteran should be afforded a VA audiological examination. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. In accordance with the latest worksheets for rating hearing loss, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his disability. A complete rationale for any opinions expressed must be provided. The examiner should also provide an opinion as to whether it is at least as likely as not that any tinnitus found is related in any way to the Veteran's active duty service or to service-connected hearing loss. If tinnitus is not found, that too should be noted. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 5. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 7. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).