Citation Nr: 1827252 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 12-13 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety. 4. Entitlement to eligibility under 38 U.S.C. § 1702 for treatment of a mental illness, including psychosis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Dominic Jones, Associate Counsel REMAND The Veteran served on active duty from June 1988 to December 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran had a Board hearing. In a November 2016 decision, the Board granted service connection for lipomas and a higher rating for service-connected left elbow fragment tip. The Board denied service connection for a left shoulder disability, and left and right wrist carpal tunnel syndrome. At that time, the Board remanded the remaining claims for additional development and consideration. While the case was in remand status, in an August 2017 rating decision, the RO granted service connection for tinnitus and bilateral photophobia eye condition. As the benefit sought for those two claims was granted in full, those issues are no longer before the Board. The issues remaining on appeal are the four issues listed on the title page. Hearing Loss The Veteran contends his hearing loss is due to military noise exposure in the form of noise from large trucks in his duties as a diesel mechanic. See May 2016 Board hearing. The Veteran's first VA examination during the appeal period was conducted in February 2011 and found no hearing loss for VA purposes. See 38 C.F.R. § 3.385. However, after noting in his Board hearing that his hearing loss had worsened, another VA examination for hearing loss was conducted in July 2017. The July 2017 VA examiner found sensorineural hearing loss in both ears. The Board notes that the results of the audiograms and speech discrimination scores during this evaluation represent hearing loss for VA purposes. With regard to etiology of hearing loss in the right ear, the examiner opined that such hearing loss was less likely than not incurred in service because the hearing tests upon entering and release of duty showed "essentially normal hearing, bilaterally." With regard to etiology of hearing loss in the left ear, the examiner opined that such hearing loss was less likely than not incurred in service using the same rationale. However, for the left ear the examiner noted that hearing loss existed prior to service, but was not aggravated beyond the normal progression with the rationale being that while some hearing tests showed a very mild hearing loss at 6000 Hz, this was not found on all tests and some tests during the Veteran's service showed normal hearing across the frequencies. In the Veteran's representative's March 2018 brief, the representative argued "the audiometry testing performed on August 15, 1995 indicated that from the reference audiogram dated May 4, 1990 there had been a 10 decibel shift at 500 Hz and 3000 Hz and a 15 decibel shift at 6000 Hz in the left ear." The representative further stated that "[t]he right ear reflected a 10 decibel shift at 4000 Hz." The representative stated such a shift was "significant" and indicative that hearing loss began during service and provided citation to Hensley v. Brown, 5 Vet. App. 155 (1993). In Hensley, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing a separation from service. The Board finds Hensley on point in the present circumstance. This is so because the examiner here essentially goes no further in supporting the rationale that hearing loss was not incurred in service than by stating that the Veteran's had "essentially normal hearing" at separation. A more fully explained rationale is necessary for the Board to assess the significance of the shifts during service noted by the Veteran's representative. As such, an addendum opinion should be obtained on remand with specific reference to the "significant shift" as asserted by the Veteran's representative. Hypertension The Veteran asserts either that his hypertension was incurred in service, or proximately due to his psychiatric disability. The Veteran received a VA examination for hypertension in June 2017. The examiner noted a diagnosis of hypertension with a date of diagnosis of 1992. It was also noted that the Veteran took daily medication for hypertension. The examiner opined that the hypertension was less likely than not incurred in service. The rationale was that the Veteran had no diagnosis of hypertension or treatment for hypertension during active duty service. The examiner went on to state that the Veteran was noted to have slightly elevated blood pressure on January 26, 1995, but that this appeared to be a one-time instance as a separation health exam dated August 15, 1995 indicated blood pressure was within normal limits. Also, on the examination from August 1995, the Veteran indicated that he was not taking medication and his blood pressure appeared to be within normal limits without medication. The examiner further stated that the Veteran's blood pressure was within normal limits at entry into service and that the Veteran was seen throughout 2008 with no medication for hypertension. The Board finds this opinion inadequate for several reasons as contended by the Veteran's representative. First, despite opining that the Veteran's hypertension was not incurred in service, the examiner notes a date of diagnosis for hypertension as 1992, which would be in the middle of the Veteran's period of active duty. Second, the examiner spends some time discussing that despite a temporarily elevated blood pressure reading in January 1995, this was a one-time instance and that the Veteran's separation examination blood pressure within normal limits. However, looking to service treatment records, in his report of medical examination at separation on August 15, 1995, in the "recommendations-further specialist examinations indicated" section the examiner seemed to indicate that a five-day blood pressure check was necessary. In its March 2018 brief, the Veteran's representative highlighted this notation and indicated that the check was never done. The Board finds this somewhat contradictory. For these reasons, the Board finds that an addendum opinion is warranted to address the seeming inconsistencies in the June 2017 examiner's opinion. Psychiatric Disability The Veteran contends that he has a psychiatric disability to include PTSD and that it was incurred in service. The Veteran had his first VA psychiatric examination in February 2011. The examiner noted the Veteran was sent to Kuwait during service and worked as an EOD (explosive ordinance disposal) team, and helped to provide security and support, but that the Veteran "had no direct combat with the enemy." The examiner went on to emphasize the Veteran "had no direct combat exposure" and that there was "no report of any fearfulness of hostile [m]ilitary combat exposure" as the Veteran stated he was not exposed to it, but also noted the Veteran was in a "danger pay" area. The examiner noted that the Veteran had a history of some treatment and that he was found to have mild depression in 2008. The examiner eventually opined that it was less likely than not that the Veteran met the DSM-IV criteria for PTSD but did note an Axis I diagnosis of depression secondary to chronic pain in the left shoulder. Despite the statement noted in the February 2011 VA examination, at his May 2016 Board hearing, the Veteran stated "[w]e seen some stuff in Kuwait." With regard to whether the Veteran had fear of hostile fire, he responded that he did have such fear the whole time he was in Kuwait. In response to these statements, the Veteran was afforded another VA examination in July 2017. This examiner stated there was no diagnosis of PTSD the conformed to DSM-5 criteria. The examiner also stated the Veteran had no other mental disorder that conformed to DSM-5 criteria. The examiner stated that he did not consider the Veteran a reliable informant and therefore did not validate any symptoms or impairments the Veteran reported. With regard to stressors, the examiner noted that the Veteran claimed to have seen many body bags with some legs and arms sticking out, but again the examiner noted that he did not consider the Veteran to be a reliable informant "as records are not consistent with the Veteran's current reports." The Board finds the VA psychiatric examinations of record inadequate for a number of reasons. Looking to the February 2011 VA examination, that examiner stated that the Veteran "had no direct combat exposure" and that there was "no report of any fearfulness of hostile [m]ilitary combat exposure." Similarly, the July 2017 VA examiner noted the statements by the Veteran in his earlier examination and stated that "records are not consistent with the Veteran's current reports." The Board finds that the examiners are either conflating or misunderstanding the relevant provisions relating to service connection for PTSD. 38 C.F.R. § 3.304(f) concerns service connection for PTSD. It states that service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) a link established by medical evidence between current symptoms and an in service stressor, and (3) credible supporting evidence that the in service stressor occurred. With regard to the stressor element, section 3.304(f)(2) states that if 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 the Veteran's service, the Veteran's lay testimony alone may establish occurrence of the claimed in-service stressor. Similarly, section 3.304(f)(3) states that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a medical professional confirms the claimed stressor is adequate to support a diagnosis of PTSD and that the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in service stressor. Here, the February 2011 examiner's opinion is presented as founded upon the notion that the Veteran had no combat exposure and "no report of any fearfulness of hostile [m]ilitary combat exposure." However, 3.304(f)(3) does not require fearfulness of combat exposure, but rather fear of hostile military or terrorist activity, which is broader in scope. Thus, even if the Veteran was not in actual combat, he may still establish his in service stressor based on fear of such hostile activity. The Board notes that the February 2011 examiner noted that the Veteran worked on an EOD (explosive ordinance disposal) team. In his July 2017 examination report, the examiner did not find the Veteran to be a reliable informant "as records are not consistent with the Veteran's current reports." Here, again, the provisions in 38 C.F.R. § 3.304(f)(3) may be met with lay testimony alone. Thus, the July 2017 examiner did not find the Veteran to be a reliable informant, but this was merely because records were not consistent with his statements. It is unclear what records the examiner was referring. Furthermore, section 3.304(f)(3) does not require any corroborating records. If the other criteria are met, the lay statement alone may attest to the fear of hostile military or terrorist activity. Here, the Board notes that the Veteran has reported that he did have fear the whole time he was in Kuwait. The February 2011 examination report notes the Veteran worked in explosive ordinance disposal. Furthermore, in his July 2017 VA examination the Veteran reported seeing dead bodies. The Board finds another VA examination is warranted for an examiner to properly consider the Veteran's lay statements both to assess whether the Veteran has had PTSD or any psychiatric disability during the appeal period, and whether any such psychiatric disability was at least as likely as not incurred in service. Moreover, the Veteran should be requested to submit any additional information regarding in-service stressors. Furthermore, with regard to entitlement to eligibility under 38 U.S.C. § 1702 for treatment of a mental illness, including psychosis, the Board finds this is inextricably intertwined with the Veteran's claim of service connection for an acquired psychiatric disability, and should be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum opinion regarding the Veteran's hearing loss claim. The entire claims file should be reviewed by the examiner. An examination should only be scheduled if deemed necessary by the examiner. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the hearing loss had its onset during service or within one year of service, or is otherwise related to the Veteran's period of service. The examiner should specifically address the decibel shift noted in the March 2018 brief. The report must include a complete rationale for all opinions expressed. 2. Obtain an addendum opinion regarding the Veteran's hypertension claim. The entire claims file should be reviewed by the examiner. An examination should only be scheduled if deemed necessary by the examiner. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the hypertension had its onset during service or within one year of service, or is otherwise related to the Veteran's period of service. The examiner should specifically address the Veteran's blood pressure fluctuations during service and the recommended blood pressure check noted in his August 1995 report of medical examination at separation. The report must include a complete rationale for all opinions expressed. 3. Invite the Veteran to submit statements regarding details of his claimed PTSD in-service stressors. Provide him a reasonable period of time to submit this evidence. 4. Thereafter, schedule the Veteran for an examination by an appropriate VA examiner to determine the etiology of any psychiatric conditions. The claims file must be made available to the examiner for review. The examiner should clearly state all psychiatric conditions diagnosed on examination, including whether PTSD is diagnosed or ruled out. For each psychiatric condition diagnosed, the examiner is to offer an opinion as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the diagnosed psychiatric condition had its onset during, or is otherwise related to the Veteran's military service. Additionally, the examiner should comment on whether a psychosis manifested within one or two years of the Veteran's separation from service. For any PTSD identified, the examiner should set forth the underlying stressor(s). A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court. 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).