Citation Nr: 20007965 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-20 165 DATE: January 30, 2020 REMANDED Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. Service connection for left ear hearing loss. An increased (compensable) disability rating for sensorineural hearing loss of right ear. A total disability rating based on individual unemployability due to service-connected disability (TDIU).   REASONS FOR REMAND The Veteran served on active duty from July 1975 to November 1977. The case is on appeal from December 2012 and March 2014 rating decisions. In November 2019, the Veteran testified at a Board hearing. The record was held open for 30 days. No additional evidence was received. 1. Service connection for a psychiatric disorder, to include PTSD, anxiety, and depression. The Board has broadly construed the Veteran’s PTSD claim to include any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This issue is remanded for to obtain his complete service personnel records (SPRs), to conduct additional stressor development, and to arrange a VA examination. With regard to the stressor development, the Veteran has identified multiple events during service, as follows. During VA treatment in February 2010, the Veteran reported working as a boom operator on a refueling plane during service and was in the combat crew, although he had no actual combat exposure. He reported seeing a lot of planes in operational missions and witnessing planes and people blown up and killed. Similarly, at a VA screening in August 2013, he reported “I flew over enemy territory,” but stated that “it’s classified” and “I can’t say.” The Veteran went on to reveal that there were times when he needed to be on alert to ride aboard a B-52 bomber armed with nuclear weapons to fly over Russia. He said he also witnessed ordnance being dropped and then saw photographs of the aftermath. On multiple occasions, such as in October 2013, the Veteran reported to his treatment providers that he was unable to give any further details because of the classified nature of his activities during service. He even voiced concern that government agents were surveilling him. In an August 2013 statement, he described working from 1976-77 doing one-week tours doing in-flight refueling of B-52 bombers, which were doing sorties to the USSR carrying nuclear warheads. He was also involved in drills where they would take-off on short-term notice with the navigators verifying launch codes upon take-off and determining whether it was an exercise or actually a potential nuclear incident. The Veteran wrote that, after doing 40-50 of these, he developed symptoms. In a July 2013 PTSD Questionnaire, the Veteran again described these alert drills. He also identified injuring his right knee entering an aircraft and having multiple close calls on missions. He clarified that he had top secret security clearance and many missions were classified. (For sake of completeness, the Board observes that the Veteran previously reported during treatment in April 2008 that he enjoyed the flying as a boom operator during service doing in-flight refueling.) Most recently, at his November 2019 Board hearing, he identified an aircraft crash in approximately the summer of 1976 at a different location from where he worked. Board Hr’g Tr. 13-14. He explained that a KC-135 was doing touch-and-go maneuvers at night. Board Hr’g Tr. 15. The aircraft hit cattle on the runway, which left four crew members dead. Id. He knew the boom operator on the flight because they had gone to school together. Board Hr’g Tr. 16. He had also met the rest of the crew once. Id. The Veteran’s service records show that he was an in-flight refueling operator. There are otherwise very limited personnel records. The Board finds that his complete SPRs should be obtained. The RO has also not attempted to verify the Veteran’s stressor involving a crashed KC-135 in the summer of 1976. Upon remand, this should be done. Finally, the Veteran has repeatedly indicated that he could not fully disclose the nature of all his in-service stressors due to their classified nature. The Board understands his concern. In fact, VA has specific protocols for handling such stressors. Upon remand, a Special Operations Forces Incident document must be prepared with the Veteran’s cooperation to be forwarded to the U.S. Special Operations Command (USSOCOM) for research. Moreover, no VA examination has been conducted to address whether the Veteran has a current psychiatric disorder due to service. This should be accomplished on remand. 2. Service connection for left ear hearing loss. This issue is remanded to obtain missing VA medical records and for a new VA examination. The Veteran contends that he has a current left ear hearing loss due to noise exposure throughout his service as a boom operator during flight refueling operations aboard a KC-135. Board Hr’g Tr. 4, 11-12. Service connection is already in effect for right ear hearing loss. With regard to the missing medical records, the claims file shows that the Veteran underwent audiological evaluations in March 2010 and in September 2013. Audiometry test results were cited, but not included in full. The referenced audiograms have not otherwise been associated with the claims file. Upon remand, these test results must be obtained. The Veteran previously underwent a VA examination in June 2010. It showed a left ear hearing loss disability for VA purposes as defined in 38 C.F.R. § 3.385. However, the VA examiner opined that the Veteran’s left ear hearing loss is not related to military noise exposure. The examiner opined that there was no scientific basis for delayed onset of noise induced hearing loss. The examiner explained that, since thresholds in the left ear did not change between the Veteran’s induction and separation, his current hearing loss was not related to noise exposure. The examiner did not identify any scientific studies. But, the language used by the examiner mirrors that of the 2005 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus. This study was recently discussed by the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 256 (2019). In McCray, the Court highlighted the appellant’s concerns about apparently qualifying or contradictory statements in the IOM report. In the instant case, the IOM report is not of record and the Veteran has not raised the concerns identified in McCray. Nonetheless, as the Court’s decision is relevant, the Board finds that clarification from the VA examiner is warranted to address the apparent conflict in the IOM report. See Euzebio v. Wilkie, 31 Vet. App. 394, 404 n.8 (2019). 3. An increased (compensable) disability rating for sensorineural hearing loss of right ear. At the November 2019 Board hearing, the Veteran asserted that the right ear hearing loss had increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the disability. 4. A TDIU. The Veteran reported during his November 2019 Board hearing that he was receiving disability benefits from the Social Security Administration (SSA). Upon remand, all records from SSA should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records, including the results of audiometry testing conducted in March 2010 and September 2013. 2. Obtain the Veteran’s federal records from SSA. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s complete SPRs. 4. Attempt to corroborate the Veteran’s in-service stressors, including his report of an aircraft crash in the summer of 1976; undertaking classified missions; and conducting alert drills. If applicable, this should include preparing a Special Operations Forces Incident Document, and submitting the request for stressor verification to the U.S. Special Operations Command (USSOCOM) to research. If more details are needed, contact the Veteran to request the information. 5. After the Veteran’s reported stressors have been developed, schedule a psychiatric examination to determine the nature and etiology of any psychiatric disorder. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the diagnosis is at least as likely as not related to an in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 6. Schedule the Veteran for an audiological examination. The examiner is asked to address each of the following: (a.) Assess the severity of the service-connected right ear hearing loss. (b.) Provide an opinion as to whether left ear hearing loss at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to service, including noise exposure. If, in answering question (b), the examiner relies on the IOM 2005 study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, the examiner must explain how the qualifying and contradictory statements in the IOM report impact the examiner’s ultimate conclusion as to whether the Veteran’s hearing loss is related to service. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.