Citation Nr: 20006590 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 17-34 052 DATE: January 28, 2020 REMANDED Service connection for bilateral hearing loss (BHL) is remanded. Service connection for tinnitus is remanded. Service connection for an acquired psychiatric disability, including post-traumatic stress disorder (PTSD) and depressive disorders, is remanded. Service connection for ischemic heart disease (IHD), status post coronary artery bypass graft, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 8, 2017 and March 17, 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has been diagnosed with more than one mental health condition, including PTSD and depressive disorders. To provide the broadest and most sympathetic review, the claim has been recharacterized to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In December 2019, the Veteran received a letter from VA notifying him that his case had been stayed because one of his claims may be affected by the Blue Water Navy Vietnam Veterans Act of 2019. On January 1, 2019, the act became effective and the stay was lifted. The Board will now proceed with the Veteran’s claims. 1. Service connection for BHL is remanded. 2. Service connection for tinnitus is remanded. The issues of service connection for BHL and tinnitus are remanded to provide the Veteran with adequate medical nexus (causal linkage) opinions because the January 2017 VA opinions did not provide opinions and supporting rationale that fully addressed the Veteran’s claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (whenever VA provides an examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate). 3. Service connection for an acquired psychiatric disability, including PTSD and depressive disorders, is remanded. The issue is remanded to provide the Veteran with a VA medical examination because he has not yet received one for an acquired psychiatric disability and there are multiple diagnoses of PTSD (and other acquired psychiatric disabilities) in his VA treatment records that note his PTSD is “chronic following military combat.” See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an “indication” of a potential causal link (nexus) to service). 4. Service connection IHD, status post coronary artery bypass graft, to include as due to herbicide agent exposure, is remanded. The issue is remanded for further development in accordance with current changes to the law with respect to his reported service in Vietnam. E.g. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (determined “service in the Republic of Vietnam” to include service in the territorial sea of that nation). [Here, (1) there are multiple diagnoses of coronary artery disease throughout his VA treatment records, (2) IHD (including coronary artery disease) may be presumptively service connected due to herbicide agent exposure, (3) he reported that he was exposed to herbicide agents while serving in Vietnam [service in Vietnam during certain time periods can result in a presumption of herbicide agent exposure], and (4) he has provided evidence the Navy ship he was assigned to was reported have deployed to Vietnam.] The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain any VA treatment records for association with the claims file. 3. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims of entitlement due to service connection. He should be invited to submit this evidence himself or request that VA obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided. [Note the Veteran in is June 2008 VA Form 9 indicated that he received treatment for his heart condition in 2005 and his VA treatment records on file appear to begin only in 2013.] If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain these records and associate them with the claims file. At least two of these efforts should be made unless it is clear from the private provider’s response to the first request that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he MUST be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. Please also advise the Veteran that service connection for PTSD requires credible supporting evidence indicating that the reported stressors occurred and invite the Veteran to submit additional evidence regarding his reported stressors, for example, letters from other servicemembers describing these events. Finally, request that the Veteran provide or identify applicable service records or any other relevant evidence pertaining to his reported exposure to herbicide agents, especially his reported service in Vietnam. Accordingly, notify the Veteran that the Blue Water Navy Vietnam Veterans Act of 2019 (the Act) became effective January 1, 2020. The Act created new statutory requirements for the adjudications of certain claims based on Veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. 4. After directive three, attempt to corroborate the Veteran’s reported in-service stressors, including: (a.) During diving operations for a sunken aircraft outside of Subic Bay, the arm of a corpse detached from the body while it was in the Veteran’s grasp. (b.) The Veteran recovered about 70 dead bodies from the USS FRANK EVANS after a collision with the HMAS MELBOURNE. [news sources report that this event occurred in June 1969.] Also, attempt to verify the Veteran’s reported in-service exposure to herbicide agents, particularly with respect to his reported service in Vietnam. The Board notes, his service personnel records show he was assigned to USS PIEDMONT for much of his career. Further, in October 2017, the Veteran provided a list of deployment dates that included deployments to “West Pac-Viet nam.” Obtain any ship’s logs, mission reports, evaluation reports, and any other available documentation to verify the Veteran’s above-mentioned reported stressors and service in Vietnam. If more details are needed, contact the Veteran to request the information. Note that, by law, the requirement of a 60-day window for research purposes violates VA’s duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015). If attempts to corroborate the reported stressors and/or service in Vietnam are not successful, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the reported in-service herbicide agent exposure and PTSD stressors. 5. After completing the above development (directives two, three, and four) to the extent feasible, schedule the Veteran for a VA audiological examination with an appropriate examiner to evaluate the nature and cause of the reported hearing loss and tinnitus. The Veteran’s entire record must be reviewed by the examiner, and all indicated tests and studies must be completed. Based on the clinical examination and the lay and medical evidence of record, the examiner must provide an opinion on the following: (a.) Identify any hearing loss. Any needed diagnostic testing should be performed, and the reports of this testing should be included in the examination report (that is, not merely a summary of the data). The examiner should ask and well document the Veteran’s reported symptoms, onset, and any continuity of symptoms (if applicable) until the present day. (b.) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed hearing loss disability had its onset in active service or within one year of separation from service OR is otherwise related to the Veteran’s active service? (c.) Identify any tinnitus. The examiner should ask and well document the Veteran’s reports of symptoms, onset, and any continuity of symptoms (if applicable) until the present day. (d.) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed or reported tinnitus disability had its onset in active service or within one year of separation from service OR is otherwise related to the Veteran’s active service? The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): • September 25, October 6 and 19, 1970 service treatment records where it is recorded the Veteran was treated for an ear infection. • March 2015 audiology consult where it is noted the Veteran reported, “a history of military noise exposure while serving as a Navy diver: artillery fire, explosions, mines, depth charges. Veteran reported tinnitus which began several years ago.” • October 2015 mental health assessment where it is noted the Veteran reported, “he was injured in his ear drum by a [North Vietnamese soldier] threw a percuss[s]ion gr[e]nade . . . to get at the divers.” • September 2016 VA form 21-526EZ where the Veteran reported “[b]ilateral hearing loss – began in service [and] still exist[s] today” and “[t]innitus – began in service [and] still exist[s] today.” • March 2017 Notice of Disagreement where the Veteran reiterated his lay statements from his September 2016 VA form 21-526EZ concerning his report that BHL and tinnitus began in service. Also, the Veteran reported, “[h]is MOS in service was Navy Diver which had a moderate probability for hazardous noise exposure.” NOTE that in regard to the above information, the Veteran has reported in service noise exposure and has NOT limited his claim only to a ruptured tympanic membrane due to a diving accident in service. In the rationale section, ensure to address in service noise exposure IN ADDITION to a ruptured tympanic membrane. Also, if it is not possible to provide the requested opinion without speculation, the examiner must explain whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner does not have the required knowledge or training. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) 6. After completing the above case development (directives two, three, and four) to the extent feasible, arrange for the Veteran to be examined by a licensed psychiatrist or psychologist to determine the nature and cause of all diagnosed psychiatric disabilities. Based on a review of the entire record, examination of the Veteran, and any additional testing or evaluation deemed necessary, the examiner should provide responses to the following: FOR PTSD: Please indicate whether the Veteran meets the diagnostic criteria for PTSD, to include at least the following reported stressors: (a.) During diving operations for a sunken aircraft outside of Subic Bay, the arm of a corpse detached from the body while it was in the Veteran’s grasp. (b.) The Veteran recovered about 70 dead bodies from the USS FRANK EVANS after a collision with the HMAS MELBOURNE. If the Veteran does not have PTSD, the examiner should note which criterion the Veteran does not meet, and why that is so. The examiner must also reconcile this finding with any conflicting notations in the claims file, to include the multiple VA treatment records noting a diagnosis of PTSD. FOR NON-PTSD PSYCHIATRIC DIAGNOSES: (c.) Please identify (by diagnosis) each non-PTSD psychiatric disability, to specifically include depression. (d.) For EACH* of the diagnosed psychiatric disability, is it at least as likely as not (defined as a 50% or better probability) that the Veteran’s current mental health condition(s) was incurred during active duty service? *In answering this question, please DO NOT provide an opinion on alcohol, stimulant, or other substance abuse disorders (these conditions are not eligible for DIRECT service connection). (e.) Is it at least as likely as not (defined as a 50% or better probability) that any diagnosed substance use condition(s) ** was proximately caused by OR aggravated by the Veteran’s service-connected disorders? (f.) Is it at least as likely as not (defined as a 50% or better probability) that any diagnosed substance use condition(s) ** was proximately caused by OR aggravated by another acquired psychiatric disability? The examiner is advised that AGGRAVATION is defined as an increase in severity of the disability beyond its natural progression. ** In answering this question, please DO provide an opinion on alcohol, stimulant, or other substance abuse disorders (these conditions ARE eligible for SECONDARY service connection). A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) 7. After completing the above case development (directives two, three, and four) to the extent feasible, if a VA examination is required due to alternative theory of entitlement other than presumptive service connection due to herbicide agent exposure, schedule the Veteran for an examination with an appropriate examiner to evaluate the nature and cause of the reported cardiovascular or ischemic heart disease. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an “indication” of a potential causal link (nexus) to service). The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. Please answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any needed diagnostic testing. (a.) Identify any current cardiovascular disease disabilities (to include ischemic heart disease, as noted in the claims file). (b.) Is it at least as likely as not (defined as a 50% or better probability), that any diagnosed cardiovascular or ischemic heart disease disability began in service or is otherwise related to his active service? A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Arritt, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.