Citation Nr: 1807564 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from January 1967 to January 1971, during which he was commended for courageous action during his service in Vietnam. The Board recognizes the Veteran's courageous and honorable service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts and from an April 2013 rating decision by the RO in Providence, Rhode Island. The Veteran timely appealed each of these decisions. With respect to the Veteran's claim for PTSD, VA provided the Veteran a statement of the case (SOC) in October 2014 and supplemental SOCs in March 2015 and May 2015. With respect to the Veteran's hearing loss claim, VA provided the Veteran an SOC in March 2014. The issue of entitlement to an increased rating for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a diagnosis of PTSD resulting from disease or injury incurred in active military service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify the Veteran about the information and evidence necessary to substantiate a claim for disability benefits, and a duty to assist the Veteran in obtaining that information and evidence. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326. In this case, VA fulfilled its duty to notify by means of standard informational letters sent to the Veteran in September 2012 and December 2012. In the case of a claim for disability compensation, VA is required to obtain the claimant's service medical records and other relevant service records, as well as medical records from VA facilities and VA-contracted medical providers. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA must also try to obtain any relevant private records that the claimant adequately identifies. 38 U.S.C. § 5103A(b). In this case, VA obtained the Veteran's service medical records and post-service VA medical records, and received records from the VA Vet Center in Fairhaven, Massachusetts. The Veteran provided private medical records and his own lay statements and documentary evidence in support of his claims. Pursuant to its duty to assist, VA must also provide a claimant a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim for compensation. 38 U.S.C. § 5103(d)(1); 38 C.F.R. § 3.159(c)(4). A thorough medical examination is one that "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303 (2007) (further citation omitted). A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Id., citing Ardison v. Brown, 6 Vet. App. 405, 407 (2007) (further citation omitted). An adequate rationale must be provided for any medical opinion rendered; a conclusory, contradictory, or incomplete analysis is not adequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In November 2012, VA provided the Veteran an examination to determine if his symptoms were consistent with a diagnosis of PTSD. Based on the diagnostic criteria contained in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM) IV, the examiner declined to diagnose PTSD because the Veteran had not reported the requisite avoidance behaviors. She instead diagnosed Depressive Disorder, Not Otherwise Specified, related to alcohol dependence that she opined was at least as likely as not to have stemmed from the Veteran's military service. In January 2015, VA provided the Veteran a second PTSD examination, in part to reconcile a conflicting diagnosis of PTSD that had been provided by the VA Vet Center. The VA examiner failed to respond fully to the Disability Benefits Questionnaire (DBQ) that guided the January 2015 examination, omitting any information about several PTSD diagnostic criteria, and disposing of those criteria with the conclusory statement that they "are not met on examination." The examiner opined that the Veteran did not have PTSD because he had held a job for 33 years, kept a marriage for 42 years and had a good relationship with his wife and grown children, and thus did not exhibit the social and occupational impairment necessary for a diagnosis of PTSD under DSM IV or DSM-5. There was no further analysis of any problems that the Veteran may have faced in maintaining these social and occupational relationships. In April 2015 the same VA examiner provided an addendum medical opinion in order to reconcile the conflicting diagnostic information received from the Fairhaven Vet Center. The examiner again failed to analyze the conflicting information, and essentially transcribed the findings of her earlier opinion. The Board finds the January 2015 examination and opinion and the April 2015 addendum opinion to be inadequate because they are incomplete and conclusory, and fail to provide the Board with an adequate basis for adjudication of the appeal. However, because the Board is granting the benefit sought, the Veteran is not prejudiced by this deficiency in VA's duty to assist. Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM IV or DSM-5, depending on time period); 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). If the evidence establishes that the 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 the 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). The Veteran's Contentions The Veteran has submitted evidence enumerating a number of traumatic events during his service as a jet engine mechanic in Vietnam, which he asserts are the cause of his current PTSD. These include an incident in April 1969 in which the Veteran defended the Da Nang Air Base, where he was stationed, against the effects of large fires in the base's ammunition dump. In a written submission the Veteran describes his exposure for approximately three hours to life-threatening concussions and shrapnel, as ordnance, including 500- and 1,000-pound bombs, exploded. In his submission, the Veteran commented, "My time in this operation is by far the most frightening and near death experiences I have ever faced in my life." The Veteran received a Marine Corps certificate of commendation for his courage and devotion to duty in "remaining in the hazardous area despite the proximity of highly explosive ordnance and shrapnel." The Certificate of Commendation, dated July 1969, is contained in the Veteran's claims file. The Board finds that it represents credible supporting evidence that the in-service stressor described by the Veteran occurred. 38 C.F.R. § 3.304(f). The Veteran also described an incident in August 1969 in which he was deployed to defend the Da Nang Air Base against an expected enemy rocket attack; the incoming rockets progressed steadily towards his assigned foxhole, the last one stopping 50 feet from his position and leaving a large crater. The Board finds that this incident reflects combat, and as such the Veteran's lay testimony is sufficient proof that this stressor occurred. 38 C.F.R. § 3.304(f)(2). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). The Veteran has described a broad range of psychophysiological symptoms which he attributes to PTSD related to these and other experiences in active service, including alcoholism; suicidal thoughts; flashbacks; aggression; emotional disconnection; depression; fatigue; social isolation; numbness; rage; mood swings and over-reaction to sounds. Analysis The Veteran's claims file contains evidence contradicting the November 2012 VA examination denying the existence of PTSD. A July 2013 intake assessment from the Fairhaven Vet Center described the Veteran as suffering from PTSD, and referenced the Da Nang ammunition dump fire as a causal traumatic event. A February 2014 Fairhaven Vet Center addendum assessment and diagnosis, specifically responsive to the diagnostic requirements of DSM IV (the version of the DSM utilized by VA during that time period), diagnosed the Veteran as having PTSD. Fairhaven Vet Center treatment records from October 2013 through August 2014 show the Veteran's attendance at regular PTSD group therapy meetings, as well as individual counseling. A February 2014 letter to the Veteran's representative from the licensed clinical social worker who provided much of the Veteran's therapy at the Fairhaven Center endorsed a diagnosis of PTSD under the diagnostic criteria of DSM-5, with a greater than 50 percent chance the disability was caused by his Vietnam service. A January 2014 assessment by another licensed clinical social worker who was closely involved in the Veteran's care at the Fairhaven Center also provided a diagnosis of PTSD, detailing the Veteran's experiences that led to an endorsement of the presence of each required DSM criterion. The Board has a duty to analyze the credibility and probative value of the evidence of record. See Roberts v. Shinseki, 23 Vet. App. 416, 423 (2010). When evidence has been adequately explained, the Board is free to favor one medical opinion or conclusion over another. Evans v. West, 12 Vet. App. 22, 26 (1998). In this case, the Board must choose between the November 2012 VA examination in which the examiner declined to diagnose PTSD because the Veteran did not endorse qualifying avoidance behaviors, and the February 2014 PTSD assessment provided by the Fairhaven Vet Center, diagnosing PTSD. The February 2014 assessment is further supported by the treatment provider's letter of January 2014, detailing the Veteran's experiences. The Board finds the February 2014 Fairhaven Center PTSD assessment to be competent, credible and more probative of the Veteran's current condition. The Board notes that the avoidance behaviors not seen in the November 2012 VA examination were subsequently recognized by the February 2014 Fairhaven Center assessment and have been described by the Veteran in his own lay statements. The Veteran received treatment for PTSD at the Fairhaven Center over an extended period, and that assessment is more consistent with and representative of the record as a whole. The Veteran's Fairhaven Center treatment providers have attributed his diagnosed PTSD to his confirmed in-service stressors. In light of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the competent and probative medical evidence of record supports the conclusion that the Veteran has PTSD resulting from disease or injury incurred in active military service. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for posttraumatic stress disorder is granted. REMAND The Veteran has been service-connected for bilateral hearing loss at a non-compensable level since June 1972. He underwent VA audiological testing in November 1976 and September 2012. In April 2013 the Veteran submitted a private hearing test from November 2006 purporting to show significant hearing loss; in March 2014 VA denied a higher rating because the submitted test results did not conform to VA standards. In his May 2014 Substantive Appeal, the Veteran asserted declining hearing. In a March 2015 statement, the Veteran's representative sought an extraschedular rating for the Veteran's hearing loss, asserting that it was severe and represented a social handicap. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). The last VA examination of record is in September 2012, more than five years ago. In light of the Veteran's contention of worsening hearing, remand is required to afford the Veteran a new VA examination to address the current severity of his service-connected bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Consistent with M-21 manual procedures, obtain any relevant outstanding VA and private treatment records and associate them with the Veteran's claims file. 2. Schedule the Veteran for a VA audiological examination with an appropriate examiner to determine the severity of the Veteran's bilateral hearing loss. All indicated studies, including audiometric testing should be performed, and all findings should be reported in detail. The examiner should also fully describe the functional effects of the Veteran's bilateral hearing loss. The rationale for any opinions offered should be provided. 3. Thereafter, readjudicate the issue remaining on appeal. If any decision remains averse to the Veteran, issue a supplemental statement of the case, and provide the Veteran and his representative an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112. ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs