Citation Nr: 21026170 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-43 577 DATE: April 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from February 1968 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript is of record. The Board notes that during the hearing, the Veteran stated that he wanted to withdraw the service claims for bilateral hearing loss and tinnitus. The VLJ asked the Veteran if he understood that the claims would no longer be pursued for compensation purposes, he answered in the affirmative. However, when asked again, he appeared to the unsure; therefore, the VLJ suggested the claims remain on appeal. The Veteran agreed to leave the claims on appeal. Thus, they are still in appellate status. The Board notes that the issue on appeal was characterized by the RO as entitlement to service connection for PTSD. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). As it relates to all the claims, there is a possibility that there are relevant outstanding treatment records not associated with the claims file. During the August 2020 Board hearing, the Veteran indicated that he had a future appointment at the Indiana VA Medical Center. It appears the records currently in the Veteran’s claims file go back to only December 2019. Additionally, the Veteran referenced hospitalizations due to suicide attempts and visits to a psychiatrist in Fort Wayne. It does not appear there has been an attempt to obtain those records. Therefore, on remand, outstanding treatment records should be obtained and associated with the claims file. Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) is remanded. Initially, the Board notes that in his July 2017 VA Form 9, the Veteran raised an issue with the adequacy of the January 2015 PTSD VA examination and alleged it was conducted in a hostile environment in which the examiner was accusatory, condescending, dismissive, and rude. Related to the continuity of symptoms, the Veteran testified at the August 2020 Board hearing that during and since service, he has experienced mood changes, depression, and anger that have contributed to two divorces. He also indicated that he is irritable, agitated, and isolates himself. The Board also notes the Veteran has been diagnosed with an unspecified bipolar disorder, PTSD secondary to childhood abuse and exposure to combat, an adjustment disorder with anxiety, and an unspecified anxiety disorder. See September 2010, July 2015, August 2017 treatment records, and January 2015 VA examination. He also has a history of suicide attempts and hospitalizations for such. See July 2015 and October 2017 treatment records indicating the Veteran attempted suicide in 2002 and 2003. The Veteran was afforded a PTSD VA examination in January 2015. At that time, the examiner indicated the Veteran did not meet the DSM-V criteria for PTSD. Rather, he was diagnosed with an unspecified anxiety disorder. While he noted some of the Veteran’s diagnoses and mentioned the reported stressor, the examiner indicated that he did not have current records of treatment from the Veteran’s mental health disorder. Additionally, the examiner did not explain whether, in his opinion, the Veteran had been previously misdiagnosed with the other psychiatric conditions. Moreover, the Board notes that the January 2015 VA examiner did not provide an opinion regarding the etiology of his diagnosed unspecified anxiety disorder. Lastly, the Board notes that the criteria for other psychiatric disorders is different from PTSD. The January 2015 VA examination did not address criteria for any other psychiatric disorder besides PTSD. For the reasons stated above, the service connection claim for an acquired psychiatric disorder is remanded for another VA examination and medical opinion. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. With regard to the Veteran’s bilateral hearing loss and tinnitus claims, the Veteran asserted that he first began experiencing symptoms when he returned from Vietnam, and they have continued since that time. See August 2020 Board hearing transcript. He contends the conditions were caused by noise exposure, including engines and mortars along with other weaponry, while in service. The Board notes that a September 2010 VA medical treatment record shows the fact the Veteran was subjected to miliary noise exposure from engines and explosives. Additionally, in a July 2017 statement of the case, VA conceded to the fact that the Veteran was exposed to noise in service. The Veteran was afforded a VA examination in January 2015. Related to the Veteran’s bilateral hearing loss, the examiner opined that it is not at least as likely or not the Veteran’s hearing loss was caused by or is a result of an event in military service. She noted that the Veteran’s hearing was normal during his enlistment and separation examination. Additionally, there were no significant threshold shifts or evidence of acoustic trauma in either ear. Therefore, she opined it is less likely than not hearing loss is due to military noise exposure and more likely impacted by civilian noise exposure, presbycusis, and some other etiology. Moreover, the examiner opined that it is at least as likely as not the Veteran’s tinnitus is associated with his hearing loss as it is known to be a symptom of such. The Board notes that in his July 2015 notice of disagreement, the Veteran took odds with the January 2015 VA examination as he reported he was told the machine would be adjusted and the test redone because he missed words. Additionally, in his July 2017 VA Form 9, the Veteran argues that he was never given an audiometric test when he separated from the military. Nevertheless, the Board finds the examination is inadequate. The examiner did not address the Veteran’s assertions. Additionally, she did not explain the significance of the facts regarding a significant threshold shift or address whether delayed-onset due to acoustic trauma from the conceded in-service noise exposure, regardless of the fact that the disorder did not manifest in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the Board finds that an additional VA examination and medical opinion is needed. The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his claimed PTSD or any other acquired psychiatric disorder, to include any records from a private psychiatrist in Fort Wayne noted in various VA treatment records. See July 2015 record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, including those from and the Indiana VAMC referenced during the August 2020 Board hearing, and VAMC records since December 2019. 2. The AOJ should contact any appropriate entity(s) and request verification pertaining to the Veteran’s claimed stressors, to specifically include being under attack while in Vietnam. In the August 2020 Board hearing, the Veteran testified that he and a fellow service member drove the truck to a fire base camp and unloaded it. While there, they were attacked, and he got into a foxhole or bunker with the other service member. While trying to get clean fatigues for the Veteran, the service member took a direct hit and died while being airlifted out of the area. 3. After completing the above development, the AOJ should afford the Veteran another VA examination to determine to the nature and etiology of any acquired psychiatric disorder that is present, to include unspecified anxiety disorder that was diagnosed during the January 2015 VA examination (even if such has since resolved). The Board notes the Veteran has been diagnosed with an unspecified bipolar disorder, PTSD secondary to childhood abuse and exposure to combat, an adjustment disorder with anxiety, and an unspecified anxiety disorder. See September 2010, July 2015, August 2017 treatment records, and January 2015 VA examination. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (50 percent or greater possibility) that the disorder manifested in service or is otherwise causally or etiology related to the Veteran’s military service, to include any symptomatology therein. If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. In providing the above opinions, the examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, lay assertions, and August 2020 testimony at the Board hearing. 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 state this with a fully reasoned explanation. In rendering these opinions, the examiner should consider that service treatment records note a history of psychiatric problems. A March 1968 record notes the Veteran’s psychiatric history and treatment. It was indicated the Veteran had trouble settling in and experienced suicidal thoughts. A June 1968 record shows the Veteran was depressed due to his back problem and that he had trouble adjusting to military life. At that time, he was diagnosed with a probable character disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus that may be present. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus is related to his military service, to include any noise exposure therein. In rendering his or her opinion, the examiner should discuss medically known or theoretical causes of bilateral hearing loss and tinnitus and describe how hearing loss and tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss and tinnitus develops from other causes, in determining the likelihood that the disorders were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) In providing the above opinion, the examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements made by the Veteran. The examiner should note 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 state this with a fully reasoned explanation. It should also be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Board notes that VA has conceded the Veteran experienced noise exposure while in the military. Additionally, it notes the Veteran’s military occupational specialty was a truck driver. The Veteran has asserted that he was exposed to noise from engines and mortars along with other weaponry. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.