judge_norm: JENNIFER HWA

disposition: denied

condition: psychiatric

text:
Citation Nr: 1807000
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  06-36 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUE

Entitlement to service connection for a psychiatric disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and her friend

ATTORNEY FOR THE BOARD

J. Freeman, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the Army from September 1977 to January 1983.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Board denied the Veteran's appeal in May 2013.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2014 Order, the Court granted a joint motion to remand the appeal to the Board.  This matter was subsequently remanded by the Board in July 2014, February 2015, July 2015, May 2016, and April 2017 for necessary development.

The Veteran testified at a February 2009 hearing conducted by a Veterans Law Judge (VLJ) who is no longer employed by the Board.  The Veteran was offered the opportunity to testify at a hearing before another VLJ and the hearing took place in August 2017.  Copies of the hearing transcripts have been associated with the claims file.

In August 2017 hearing testimony before the undersigned, the Veteran stated that she is currently homeless.  In light of the Veteran's severe financial hardship, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2017).  38 U.S.C. � 7107(a)(2) (2012).

FINDING OF FACT

The preponderance of the evidence of record does not show that the Veteran's psychiatric disorder is related to her active service.

CONCLUSION OF LAW

A psychiatric disability was not incurred in or aggravated by active service, and the incurrence or aggravation of a psychosis during such service may not be presumed. 38 U.S.C. �� 1101, 1112, 1131, 1137 (2012); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)
VA has a duty to notify the Veteran of the information and evidence necessary to substantiate a claim.  38 U.S.C. � 5103(a); 38 C.F.R. � 3.159(b).  The Veteran was not provided adequate VCAA notice prior to the November 2005 rating decision on appeal.  However, the RO later sent required notice and completed all necessary development.  The originating agency then readjudicated the claim in September 2006.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim).

In addition, VA has a duty to provide assistance to substantiate a claim.  38 U.S.C. 5103A; 38 C.F.R. � 3.159(c).  VA obtained the Veteran's service treatment records, service personnel records, and post-service treatment records identified by the Veteran.  This matter was previously remanded for further VA examinations and to afford the Veteran an additional hearing before a VLJ.  The Board finds that all prior remand directives have been completed, and the case may move forward without prejudice to the Veteran.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

II. Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. � 1131.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Personality disorders are not diseases or injuries for VA compensation purposes.
38 C.F.R. � 3.303 (c).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. � 4.125 (a) (under the criteria of DSM-IV), 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. � 4.125 (2016).  VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV).

The Board notes that on August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V.  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014.  Because the appeal was originally certified to the Board prior to August 4, 2014, the Veteran's claim does not meet the provisions of this interim rule.  Therefore, the applicable DSM-IV criteria applies.

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).

There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. � 3.304 (f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate their account of the stressor incident.

Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  38 C.F.R. � 3.304 (f)(5).  VA's Adjudication Procedures Manual (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals.  M21-1MR, Part IV, Subpart ii, 1.D.17.g.

Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. � 3.304 (f)(5).

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a psychosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. �� 1101, 1112, 1137; 38 C.F.R. �� 3.307, 3.309.

Service connection may also be granted for a disability that is proximately due to or the result of service-connected disability.  38 C.F.R. � 3.310  (a).  Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. � 3.310(a).  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

During the pendency of this claim, 38 C.F.R. � 3.310 was amended, effective October 10, 2006.  The amendments to this section are not liberalizing.  Therefore, the Board will apply the former version of the regulation.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

As a threshold matter, the RO denied service connection for PTSD in rating decisions in December 2003, June 2004 and July 2004.  The November 2005 rating decision on appeal denied service connection specifically for bipolar disorder.

Generally, a claim that was been denied in an unappealed rating decision may not thereafter be reopened and allowed unless new and material evidence is received. 38 U.S.C. � 5108.   However, a claim based on a diagnosis of a new mental disorder states a new claim, when the new disorder had not been diagnosed at the time of the prior notice of disagreement.  Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).  The Board may accordingly consider the claim for service connection for bipolar disorder without first determining whether new and material evidence has been received.

As the record reflects several claimed psychiatric disorders, including PTSD, bipolar disorder, and personality disorder, this claim has been expanded to include all of these claimed disorders.  Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).  Thus, the Board must consider whether service connection is warranted for any diagnosed psychiatric disorder.

III.  Factual Background
Service treatment records are silent for any complaints, treatment, or diagnosis of a psychiatric disorder.  A report of medical examination in January 1983 at the time of the Veteran's separation from active duty noted clinical psychiatric evaluation was "normal."  In the self-reported report of medical history at the time of separation, the Veteran denied any depression or excessive worry or nervous trouble of any sort.

Service personnel records show the Veteran entered active service in the enlisted ranks in September 1977 and subsequently was commissioned into the Military Intelligence (MI) branch via Officer Candidate School (OCS) in January 1980.  A November 1982 Officer Efficiency Report (OER), while the Veteran was a First Lieutenant serving in Korea, provides an essentially substandard performance review and recommends that she not be promoted to the next rank or retained in either the active or reserve forces.  However, following discharge from active duty in January 1983, she was able to enter service with the Arizona National Guard as a First Lieutenant.  She was not recommended for promotion to Captain and was transferred to the Army Reserve in October 1985.  She subsequently served in the Army Reserve in the rank of Sergeant. The record does not document any specific periods of active duty associated with her service in the National Guard or Army Reserve.

VA treatment records show the Veteran's house burned down in May 2002.  She was treated for resulting depression through October 2002, and was prescribed sedatives to cope with the stress of the situation.

In December 2002, the Veteran was referred to a VA psychologist for an individual psychotherapy session.  The Veteran asserted she had been diagnosed with PTSD due to sexual assault in service.  The psychologist diagnosed adjustment disorder with mixed depression and anxiety.

A different VA psychologist evaluated the Veteran in February 2003 and asked the Veteran about the alleged in-service sexual trauma.  The Veteran stated she had not been physically assaulted, but rather emotionally harassed.  The psychologist indicated referral to the Mental Health Clinic (MHC) would be appropriate to rule out bipolar disorder.  The psychologist's assessment was depressive disorder not otherwise specified (NOS) and anxiety disorder.

A May 2003 "buddy statement" submitted by A. K. states he knew the Veteran while she was an instructor at the Army Intelligence School at Fort Huachuca, Arizona.  During that time, the Veteran was married to a Marine Corps Noncommissioned Officer (NCO) who was also an instructor.  The Veteran's husband was one of several male instructors who were accused of giving passing grades to a female student in exchange for sexual favors, which placed considerable stress on the Veteran as both a fellow instructor and a family member of one of the accused.  The instructors were ultimately reinstated and the student was dropped from the course.

In May 2003, a VA psychologist reviewed the buddy statement from A. K. and stated that the letter supported the Veteran's allegations of trauma while in the military.  The psychologist's assessment was PTSD and depressive disorder NOS.

A June 2003 MHC progress note documented that the Veteran had been seen by a number of providers for a history of PTSD, possible bipolar disorder and personality disorder.  The psychiatrist noted that the Veteran expressed a confusing litany of current and past stressors and obscure references.  The psychiatrist diagnosed Axis I disorders of depressive disorder, rule out bipolar disorder, and PTSD by history from reported sexual trauma.  He also diagnosed mixed personality disorder with histrionic, borderline, dependent features (Axis II).  It was noted that the Veteran's primary problems were related to her mood disorder and personality disorder, and not the reported PTSD symptoms, though it was difficult to assess given her agitation and lack of clarity in reporting history and symptoms.  As the Veteran's symptoms were not controlled by medication, she was accordingly not eligible for follow-up in the PTSD clinic.

A June 2003 letter from a psychologist affiliated with the Vet Center in Tucson, Arizona stated the Veteran presented with symptoms consistent with a diagnosis of bipolar disorder and that she continued to report PTSD symptoms from sexual trauma in the military.

The Veteran was interviewed by a VA psychiatrist in August 2003.  She stated that events in the military primarily focused on sexual discrimination by a commanding officer who did not like female officers.  She also asserted that she was unpopular because she enforced rules about modest dress on paydays.  In addition, the Veteran claimed that she was assigned to investigate furniture thefts, resulting in people being dismissed, and assigned to investigate gay soldiers in another unit.  She stated her Marine husband was framed in a sexual harassment scandal by a female in the Veteran's unit who was hosting orgies with numerous persons in her unit.  She also alluded to sexual harassment against her by senior NCOs in her unit, but without providing details.  She further stated that her activities investigating gay soldiers during service caused her to be targeted by lesbian teachers after her discharge from service.  The psychiatrist noted it was not clear whether the Veteran met the criteria for PTSD or even the nature of the trauma.  It was also not clear whether her speech pattern suggested a mood disorder, a psychotic disorder or Axis II characteristics. The psychiatrist diagnosed rule out PTSD, mood disorder, psychotic disorder (Axis I) and personality disorder NOS (Axis II).

The Veteran submitted a seven-page stressor statement in February 2004.  The Veteran asserted that her problems began when a female student at Fort Huachuca falsely accused the Veteran's husband of sexual harassment.  The resulting investigation exposed widespread sexual "shenanigans" that caused many high-ranking personnel to lose their careers and retirements.  She was also tasked with investigating gay and lesbian soldiers in her command, investigating theft of furniture, and providing information about the sexual activities of high-ranking officers and civilians, all of which she did.  Although the Veteran's husband was exonerated, the Veteran was reassigned to Korea, where she was viewed with distrust because of her reputation from Fort Huachuca.  Following discharge from service she attended the University of Arizona, where she was targeted for retribution by lesbian faculty because of her in-service investigative efforts directed toward lesbian and gay soldiers.

The Veteran received a VA PTSD examination in May 2004.  The examiner noted the Veteran had delusions of persecution by the homosexual community based on her reported work concerning homosexual personnel in her military unit.  The examiner also noted the Veteran reported grandiose academic accomplishments not confirmed by the record.  As to military stressors, the Veteran was not able to provide specific and clear information other than that her husband had been accused of sexual misconduct and that although he was ultimately cleared of those charges, it placed a strain on the marriage.  The Veteran did not identify any stressors that involved "actual or threatened death or serious injury or threat to the physical integrity of self or others," a definition of traumatic event within the diagnosis of PTSD given in the DSM-IV.  She stated that her activities exposing gay military personnel had followed her everywhere and caused her to be blackballed by employers and impeded her pursuit of advanced educational degrees.  The examiner diagnosed bipolar I disorder, severe, with psychotic features (Axis I) and personality disorder NOS (Axis II).  The examiner stated the Veteran did not have PTSD, but it was possible her bipolar disorder began while she was on active duty.

A September 2004 VA MHC note shows the Veteran reported having recently begun a new job as a high school teacher, but she was having trouble coping because there were three people at the school who had been involved in her conflicts while in the military.  She also had problems coping with a lesbian teacher across the hall.  The psychiatrist's impression was mood disorder with psychotic symptoms and personality disorder NOS.  In April 2005, the same VA psychiatrist noted the Veteran reported more incidents with "gays" at her school, and the psychiatrist continued the previous impression.

A treatment letter from the Vet Center dated June 2005 noted the Veteran's assessment was consistent with a diagnosis of bipolar disorder and that the Veteran did not meet the criteria for a diagnosis of PTSD.  Vet Center progress notes dated August 2005 revealed the Veteran was evaluated for possible admission to the PTSD counseling unit based on her report of PTSD due to sexual trauma in service. However, it was determined the Veteran did not have PTSD and the case was accordingly closed.

In January 2006, the Veteran reported to her attending VA psychiatrist that she continued to experience sequelae from her time on active duty and conflicts with gay personnel.  She stated that 11-23 of those persons now worked in her school district and she continued to be harassed.  The psychiatrist continued the impression of mood disorder with psychotic symptoms and personality disorder NOS.

The Veteran received a VA psychological evaluation in September 2006 to assess her current stability.  The Veteran reported a complicated and emotional series of events related to her service responsibilities of investigating lesbians in the military.  After the investigation, she continued to encounter some of the individuals she had investigated and their partners, and she believed this was a conspiracy to complicate and burden her life.  She described numerous scholastic and athletic accomplishments before, during, and after active service, and the examiner stated that many of her descriptions were hard to believe as one person could rarely, if ever, complete all those experiences in one lifetime.  The examiner conducted a series of psychological studies and diagnosed bipolar disorder, most recent episode manic, severe, with psychotic features (Axis I).  The examiner also diagnosed histrionic and narcissistic personality tendencies (Axis II).  Notably, the examiner listed a number of psychosocial stressors (Axis IV), but none referred to active service.

The Veteran had a VA vocational assessment in October 2006, during which she reported a stellar academic history prior to active service.  While in service, she was assigned to spy on suspected lesbian personnel at Fort Huachuca, and 30 lesbians were discharged as a result of the investigation.  After discharge from service, her efforts to pursue advanced academic degrees were continually frustrated by lesbians who placed impediments in her path.  The interviewer, a Certified Procedural Coder (CPC), stated the Veteran appeared to have PTSD and a manic disorder with possible moments of histrionics.

The Veteran testified before the Board in February 2009, stating that she and her husband, a Marine Corps NCO, were instructors at Fort Huachuca.  The Veteran's husband was one of eight male instructors accused of providing passing grades in exchange for sex.  In the wake of the investigation, the Veteran was assigned a series of demeaning details by the school commandant, who was opposed to females in service and disapproved of an officer being married to an NCO.  These details included investigating sex orgies in Fort Huachuca, investigating misappropriation of furniture, and gathering information on gay and lesbian soldiers.  Since separation from service, the Veteran has continually run into persons who were subject to investigation, and she maintains that she has been persecuted by such people in her academic and professional endeavors.

The Veteran submitted an audio cassette tape to the Board in May 2010 reiterating her experiences in Fort Huachuca and subsequent persecution by gays and lesbians who resented her investigative activities in service.

On VA examination in September 2011, the only mental disorder diagnosed was personality disorder not otherwise specified.  The examiner specifically indicated that only one mental disorder was present.  The examiner opined that the personality disorder was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner observed that the Veteran had a history of a confusing presentation of symptoms, and as a result, she has had a number of diagnoses from numerous different providers.  It was noted that the single consistent diagnosis among multiple health care providers was personality disorder not otherwise specified.  The examiner noted that one health care provider had concluded that the Veteran's Axis II characteristics made it difficult to assess her Axis I symptomatology and the examiner agreed with that determination.  The examiner also found the Veteran's presentation was consistent with a DSM-IV diagnosis of personality disorder not otherwise specified, as she demonstrated disrupted cognition, emotional dysregulation, and reported impaired interpersonal functioning (having no close relationships, demonstrated suspiciousness, and reported and expressed irritability with a wide variety of people).  Based on these findings, the examiner opined that a diagnosis of bipolar disorder did not sufficiently capture the entirety of the Veteran's complex symptomatology.  Instead, the examiner found that a diagnosis of personality disorder captured, in the most parsimonious manner, the broad and complex disorganization of the Veteran's symptoms.  The examiner noted that the onset of a personality disorder occurs in adolescence or early adulthood.  Ultimately, the examiner concluded that although the Veteran's mental health treatment did not begin until 2002, it was at least as likely as not that the onset of this disorder began during her military service.

In October 2011, the Veteran underwent a VA assessment for PTSD.  The clinician noted that the Veteran's reported history was consistent with reports she provided to other clinicians.  The Veteran claimed PTSD related to being "threatened" and harassed by persons who were separated from the military due to information the Veteran had gathered related to homosexual conduct.  She also reported living in fear that something would happen based on past threats to her well-being and observations that several homosexuals from her military unit were now living in her neighborhood.  The clinician observed that, despite the Veteran's fears, there had been no retribution to date.  The Veteran reported anxiety when she thought about the past experiences and often had nightmares about what may occur.  She also reported problems with emotional regulation, distress tolerance, and interpersonal effectiveness.  The clinician noted that the Veteran was tangential and perseverative throughout the interview.  The clinician found that the Veteran's personality style was consistent with past medical notes and psychological testing conducted in 2004.   The clinician observed that the Veteran presented with anxiety symptoms related to harassment and perceived threats she received both during and after her military service.  It was also noted that she had been diagnosed with bipolar disorder, and this diagnosis was not substantiated or refuted during the interview, as the purpose was to evaluate PTSD-specific symptoms.  The clinician found that the Veteran's reported "threats" lacked objective information to constitute trauma in regard to PTSD.  He also found that the Veteran's personality construct, as evidenced in the interview, past medical notes, and psychological testing, likely played a role in Veteran's development and maintenance of symptoms.  It was recommended the Veteran have a primary treatment team to reduce systemic reinforcement of her illness.  The assessment was anxiety state, bipolar disorder, and personality disorder not otherwise specified.

In a November 2011 VA psychiatric progress note, it was written that the Veteran had bipolar disorder with a history of psychotic symptoms, personality disorder not otherwise specified, and pain disorder.  She was quite tangential with limited insight into her maladaptive personality traits.  The clinician found that the diagnosis of bipolar disorder was questionable but difficult to distinguish, at the time of the session, from a personality disorder.

In October 2012, a VA clinician noted the Veteran was diagnosed with bipolar disorder with a history of psychotic symptoms, personality disorder not otherwise specified, and rule out delusional disorder.  The clinician observed that the Veteran remained paranoid and delusional and opined that these symptoms likely stemmed from a Cluster A personality disorder (possibly schizotypal personality disorder).  The clinician noted that the Veteran remained convinced she had PTSD despite clinical observations and objective testing to the contrary.

The Veteran received a VA DBQ mental disorders examination in January 2013, which was conducted by a different examiner than the one who examined the Veteran in September 2011.  The examiner diagnosed personality disorder not otherwise specified and found that the Veteran did not have any other mental disorder.  The examiner opined that the personality disorder was less likely than not (less than 50 percent probability) caused by the claimed in-service injury, event or illness.  The rationale was that the onset of personality disorders typically occurs in childhood or adolescence and typically manifests by early adulthood.  The examiner opined that it was at least as likely as not that the onset of the disorder began prior to the Veteran's military service.  Regarding the Axis I diagnoses of bipolar disorder and mood disorder, it was the examiner's opinion that neither bipolar disorder nor a mood disorder was present in August 2005 or thereafter.  Specifically, the examiner reasoned that neither a diagnosis of bipolar disorder nor a diagnosis of mood disorder sufficiently captured or described the breadth and complexity of the Veteran's characterological disorganization.  Ultimately, the examiner found that the most parsimonious diagnosis that both described and informed treatment was personality disorder not otherwise specified with narcissistic, histrionic, paranoid, and compulsive traits.

On VA DBQ mental disorders examination in September 2014, the Veteran was diagnosed with unspecified personality disorder.  The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner reviewed the Veteran's records and concluded that the Veteran did not meet the diagnostic criteria for bipolar disorder or mood disorder.  Instead, her presentation and history were consistent with a diagnosis of personality disorder with narcissistic traits and delusions around "the gays and the lesbians," which the examiner noted that the treating providers had diagnosed as well.  In addition, the examiner observed that the Veteran's mild to moderate symptoms of anxiety were more likely than not secondary to the personality disorder and did not warrant a separate diagnosis.  The Board remanded this case in February 2015 to obtain an addendum medical opinion from the October 2014 VA examiner to specifically address why a personality disorder was an appropriate diagnosis and the reasons that other previously diagnosed disorders were misdiagnosed.  However, in a March 2015 addendum opinion, the examiner merely restated her prior findings set forth above, and failed to address the Board's inquiries.  As such, this matter was again remanded for a VA examination by a new examiner.

On VA examination in November 2015, the examiner diagnosed the Veteran with unspecified personality disorder.  The examiner concurred with the October 2014 examiner, finding that the Veteran did not meet the diagnostic criteria for bipolar disorder or mood disorder and did not in 2005.  The examiner also agreed that it was at least as likely as not that the onset of the Veteran's personality disorder predated military service.  As this examination also did not fully comply with the Board's prior July 2014 remand instructions, this matter was again remanded to obtain the necessary opinion.

The Veteran received a VA DBQ examination in June 2016, and the diagnoses were unspecified personality disorder and delusional disorder, persecutory type, continuous.  The examiner observed that the Veteran demonstrated mixed personality features of several of the Cluster B personality disorders, which caused clinically significant impairment in social, occupational or other important areas of functioning.  She opined that the Veteran did not meet the full criteria for any one specific personality disorder, stating that the presence of mixed traits and significant impairments resulted in the diagnosis of unspecified personality disorder.  Ultimately, the examiner concluded that it was less likely than not (less than 50 percent chance) that the personality disorder originated during service or was otherwise etiologically related to military service.  The rationale was that personality disorders have their onset in adolescence or early adulthood.  As the Veteran did not join the military until age 28, the examiner opined that her personality disorder likely predated her military service.

As to the diagnosis of delusional disorder, the examiner observed that the Veteran has a fixed belief that she is being persecuted by a group of lesbians and their affiliates.  The examiner concluded that it was less likely than not (less than 50 percent chance) that the delusional disorder originated during service or was otherwise etiologically related to military service.  The rationale was that the Veteran's military personnel and treatment records did not reflect any records suggesting that she was suffering from fixed delusions regarding lesbians during the time of her service.  The examiner noted that there is no evidence in the Veteran's military records demonstrating that she suffered from a delusional disorder during or prior to her service.

The June 2016 VA examiner also addressed the Veteran's prior diagnoses of bipolar disorder, bipolar disorder with history of psychosis, mood disorder with psychotic symptoms, and mood disorder NOS.  The examiner stated that these diagnoses were all describing the same set of symptoms (observed at different points of time) and were more likely than not (greater than 50 percent chance) clinically correct at the time of treatment, according to DSM-IV criteria.  However, the examiner opined that these diagnoses turned out to be inaccurate and she agreed with previous examiners who gave the opinion that it was less likely than not that the Veteran was ever correctly diagnosed with bipolar disorder.  The rationale was that it can be difficult for a treating provider to differentiate between a bipolar disorder and the Cluster B personality disorders because there is significant symptom overlap.  She stated that under the criteria for bipolar disorder, there has to be distinct periods where the person is demonstrating the manic/hypomanic behavior, followed by more normal or routine behavior.  Upon review of the record, the examiner determined that the Veteran's symptoms have been persistent and unrelenting over time, which is more consistent with a personality disorder diagnosis rather than a diagnosis of bipolar disorder.

The examiner also addressed the previous diagnoses of psychosis and psychotic symptoms, and opined that these symptoms appeared more consistent with a diagnosis of delusional disorder.  The examiner rationalized that the medical records suggest fixed persistent beliefs about persecution by lesbians, which could be construed as psychosis to a treating clinician in the early phases of treatment.  The examiner noted that the treating clinicians providing these misdiagnoses did not have the benefit of observations over time, but that the Veteran's current mental health provider has 13 years of records across multiple settings, which allows for more precision in diagnosis.  She went on to state that the Veteran's previous diagnoses are thought to be earlier manifestations/clinical diagnoses that are related in terms of symptoms, to her current ones, which evolved into the current diagnoses of personality disorder unspecified and delusional disorder.  Ultimately, the examiner concluded that all of these diagnoses, previous and current, are less likely than not (less than 50 percent chance) incurred during the Veteran's military service or otherwise etiologically related to her military service.

IV.  Analysis
The Board finds that service connection is not warranted for a psychiatric disorder. The medical evidence demonstrates that the Veteran has been diagnosed with numerous mental disorders.  However, the only mental disorders that health care providers have linked to the Veteran's active duty service in any way are PTSD, bipolar disorder, and personality disorder.

With regard to PTSD, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran has not had PTSD at any time during the pendency of the claim.

The Veteran contends that her stressful experiences on active duty caused her current psychiatric disorder, whether characterized as bipolar disorder or as PTSD. The Veteran did not serve in combat and although she initially alleged that she was physically assaulted during active duty, she later clarified that she was emotionally, not physically, harassed.  The Veteran continued to complain about the command climate at Fort Huachuca as anti-female.  The only objectively corroborated stress she experienced while on active duty was that her husband (not herself) was one of several persons accused of sexual misconduct as an instructor, of which he was subsequently exonerated.  The record does not contain any other objective verification of the other stressors she has asserted (demeaning details and persecution/harassment throughout the remainder of her active service).

The May 2003 diagnosis of PTSD was based on a review of the May 2003 buddy statement, which referenced the fact that the Veteran's husband, who was a military instructor, was accused of giving passing grades in exchange for sexual favors.  The diagnosis was given based solely on this one purported stressor.  However, the May 2004 VA examiner specifically noted the alleged stressor involving the Veteran's husband and then cited to the fact that this stressor does not meet the definition of a traumatic event required for a DSM-IV diagnosis of PTSD.  The stressor did not involve "actual or threatened death or serious injury or threat to the physical integrity of self or others."  The Board places greater probative weight on the May 2004 VA examiner's opinion that the Veteran did not have PTSD because this opinion was supported by persuasive rationale that directly referenced the stressor criteria for a DSM-IV diagnosis of PTSD and specified why the Veteran did meet the criteria.  In contrast, the provider who diagnosed PTSD in May 2003 did not provide any rationale for the diagnosis and there was no citation to the criteria required for a diagnosis of PTSD under DSM-IV.  The Board's findings are further supported by the October 2011 PTSD assessment, in which the clinician found that the Veteran's reported "threats" lacked objective information to constitute trauma in regard to a PTSD diagnosis.

Moreover, the Board notes that the majority of the health care professionals who have examined the Veteran have determined that she does not have PTSD.  Most of these records do not provide rationales for the determinations.  They could be found to be equally probative on that basis.  However, as more of the records indicated that the Veteran did not have PTSD, the Board finds this evidence also preponderates against the Veteran's claim.  In light of the foregoing, the Board finds that the Veteran has not had PTSD at any time during the pendency of the claim, and thus service connection is not warranted for PTSD.

The record shows the Veteran has also been diagnosed with bipolar disorder during the pendency of this claim.  However, only one of the numerous clinical records and reports of VA examinations indicates that the bipolar disorder is or might be etiologically related to active duty or have been present within one year of the Veteran's discharge from service.  The Board notes that the examiner who conducted the May 2004 VA examination opined that it was "possible" that the Veteran's bipolar disorder began during active duty.  A speculative opinion such as this also implies that the author believes that the disorder also might not be related to service.  The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993).

While the May 2004 VA examiner reviewed the Veteran's claims file and conducted a physical examination, the opinion lacks any supportive rationale for the conclusion that bipolar disorder possibly began on active duty.  Indeed, the opinion does not contain any references to record evidence suggesting a link between the diagnosed bipolar disorder and the Veteran's active service.  There is no other medical evidence of record indicating that the Veteran's diagnosed bipolar disorder is related to her active duty service or that it manifested within one year of her discharge from service.  Instead, the most probative evidence of record demonstrates that the correct diagnosis for the Veteran's mental disorder is a personality disorder.  Accordingly, the Board finds that service connection is not warranted for bipolar disorder.

The VA examinations conducted in September 2011, January 2013, October 2014, November 2015, and June 2016 revealed that the Veteran's mental disorder is best diagnosed as a personality disorder (as well as delusional disorder per the June 2016 examination).  The Board places significant probative weight on the findings included in these reports.  These opinions were afforded significant weight because the VA examiners reviewed the Veteran's claims file, based their findings on that review, and provided adequate rationale with citations to supporting clinical records and findings based on the Veteran's presentation and self-reported history.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning).  They also examined the Veteran.  Specifically, the September 2011 examiner determined from a review of the record that the Veteran has a history of a confusing presentation of symptoms, but the consistent diagnosis was personality disorder, which the examiner found appropriate based upon the Veteran's disrupted cognition, emotional dysregulation, and reported impaired interpersonal functioning.  The January 2013 examiner conducted psychological testing to evaluate the nature and etiology of the Veteran's condition and was in support of a diagnosis of personality disorder.  Both the September 2011 and January 2013 VA examiners concluded that personality disorders typically have their onset in adolescence or early adulthood, which the Board notes is prior to the Veteran's period of military service.  In addition, the October 2014 and November 2015 VA opinions reflect an evaluation of the diagnostic criteria for bipolar disorder and mood disorder, with the ultimate determination that a diagnosis of unspecified personality disorder was most appropriate and that the condition predated military service.
The Board finds the June 2016 VA opinion particularly probative as it is supported by persuasive rationale.  The examiner specifically states the criteria for a diagnosis of bipolar disorder and provides adequate reasoning in support of the conclusion that the Veteran's symptoms fail to meet the criteria.  The examiner noted that the Veteran's symptoms were persistent and unrelenting over time (consistent with personality disorder), whereas the criteria for bipolar disorder requires distinct periods where the person is demonstrating the manic/hypomanic behavior, followed by more normal or routine behavior.  The examiner also addressed the various discrepancies in the prior diagnoses and provided adequate rationale for the finding that these prior diagnoses constitute early manifestations of a present personality disorder, and were based upon early phases of treatment by providers who did not examine the Veteran over time.

The Board notes that the June 2016 VA examination revealed a current diagnosis of delusional disorder.  However, the examiner opined that it was less likely than not that this disorder originated during service or was otherwise etiologically related to military service.  The Board notes that there is no medical opinion to the contrary.  As such, service connection for delusional disorder is not warranted.

The Board has considered the Veteran's lay statements regarding her psychiatric disorder.  However, although the Veteran is competent to describe her symptoms, she is not competent to provide a diagnosis or determine the etiology of her psychiatric disorder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  The Veteran's opinion as to the diagnoses and etiology of her psychiatric disorders, while sincere, is not competent evidence; such question requires medical expertise to determine.  Therefore, the Board finds no probative value in the Veteran's statements in regard to the diagnoses or etiology of her psychiatric disorders.

The Board finds that the preponderance of the evidence demonstrates that the only psychiatric disorder present during the period of this claim is a personality disorder.  As set forth above, service connection for personality disorders is precluded by 38 C.F.R. � 3.303 (c).  Accordingly, the claim is denied.

ORDER

Entitlement to service connection for a psychiatric disorder is denied.

____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: PAUL SORISIO

disposition: granted

condition: shoulder

disposition: remanded

text:
Citation Nr: 1808000
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  12-08 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1.  Whether new and material evidence has been received to reopen a service connection claim for a right shoulder disability.

2.  Whether new and material evidence has been received to reopen a service connection claim for a left shoulder disability.

3.  Whether new and material evidence has been received to reopen a service connection claim for a right hip disability.

4.  Whether new and material evidence has been received to reopen a service connection claim for a left hip disability.

5.  Entitlement to service connection for left elbow tendonitis (mild).

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

M. Prem, Counsel

INTRODUCTION

The Veteran served on active duty from February 1987 to February 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in November 2010;
a statement of the case was issued in November 2011; and a substantive appeal was received in March 2012.

The issues of entitlement to service connection for right and left shoulder disabilities, right and left hip disabilities, and a left elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  In January 2008, the RO denied the Veteran's claims for service connection for a right shoulder disability, a left shoulder disability, and a left hip disability.  The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance

2.  Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims of service connection.

3.  In January 2008, the RO denied the Veteran's claim for service connection for a right hip disability.  The Veteran filed a timely notice of disagreement; but failed to file a timely substantive appeal in response to a September 2008 statement of the case.

4.  Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims of service connection.

CONCLUSIONS OF LAW

1.  The January 2008 RO rating decision, which denied the Veteran's service connection claims for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability is final.  38 U.S.C. � 7105 (2012); 38 C.F.R. � 3.156(b).

2.  Evidence received since the January 2008 RO rating decision is new and material; accordingly, the claims for service connection for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability are reopened.  38 U.S.C. � 5108 (2012); 38 C.F.R. � 3.156(a) (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

As the Board grants the Veteran's petition to reopen, it will not undertake a discussion of VA's duty to notify and assist in this section because any error is harmless.  The reopened issues will be addressed in the Remand section below.

Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence.  38 U.S.C. �� 5108, 7105; 38 C.F.R. � 3.156.  Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case.  38 C.F.R. � 19.26.  A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  38 C.F.R. � 20.302(b).  Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence.  38 U.S.C. �� 5108, 7105; 38 C.F.R. � 3.156.

Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim.  See 38 U.S.C. � 5108; 38 C.F.R. �3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995).  New evidence is that which was not previously submitted to agency decision makers.  Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992).  There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered.  There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening.  Id. at 117-20.

The Veteran's claims for service connection for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability were denied by way of a January 2008 RO decision.  With regards to the right shoulder disability, left shoulder disability, and a left hip disability, the Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision.  With regards to the right hip disability, the Veteran filed a timely notice of disagreement.  However, he failed to file a timely substantive appeal in response to a September 2008 statement of the case.  As such, these decisions became final.  38 U.S.C. � 7105(c) (2012); 38 C.F.R. � 3.156(b) (2017) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final).

The evidence on record at the time of the January 2008 denial included the service treatment records and VA examinations dated October 2007 and November 2007.  The service treatment records failed to reflect any findings attributed to a right shoulder disability, left shoulder disability, and a left hip disability.  They did reflect that the Veteran sustained a seven foot fall in October 2004; and that he reported right hip pain at that time (STR - Medical, 11/29/14, p. 31).

The basis for denying the right shoulder disability, left shoulder disability, and left hip disability claims was that there was no evidence of these disabilities in the service treatment records.  With regards to the right hip, the RO acknowledged an in-service injury.  The claim was denied because it found no current right hip disability in his November 2011 VA examination.

Evidence received since the January 2008 rating decision includes a March 2010 diagnosis of a right hip labral tear (Medical Treatment Record - Government Facility, 9/19/11, p. 5), and a January 2011 lay statement from K.J. (who substantiated the Veteran's contention that he was involved in a serious accident in May 2001 while aboard the U.S.S. Saipan) (Third Party Correspondence, 9/1/11).   K.J. elaborated that the Veteran sustained injuries to elbows, back, and left hand and that a formal serious incident report was filed.  Afterwards, the Veteran had limited duty and therapy and a waiver because he was unable to perform mandatory physical training.

The Board finds that this new evidence is new and material evidence to reopen the Veteran's claims.  The March 2010 diagnosis of a right hip labral tear addresses the basis for the prior denial, in that it reflects evidence of a current disability.  The January 2011 lay statement is evidence supporting an in-service accident that was not noted to have been in the service treatment records.  As new and material evidence has been received, the claims for entitlement to service connection are reopened.

ORDER

The petition to reopen the service connection issues for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability is granted.

REMAND

The Veteran contends that he sustained serious injuries aboard the U.S.S. Saipan.  He stated that he received treatment and underwent therapy at the Portsmouth Navy Hospital.  He also stated that he was placed on limited duty for four months; and that the injuries almost cost him his career (Correspondence, 9/1/11).  The alleged in-service accident was substantiated by a January 2011 lay statement from K.J. (Third Party Correspondence, 9/1/11).

The Veteran's representative has asserted that there may be missing service treatment records, as there do not appear to be any service treatment records pertaining to 2001 (when the alleged accident occurred).  The representative also alleged that the Veteran's current disabilities (particularly his hip disabilities) could have been due serving on ships for most of his 20 year career.  It suggested that this involved excessive standing on hard metal decks.  The representative also noted that the Veteran was scheduled for VA examinations; but that the Veteran had to cancel them.  It was requested that the Veteran be rescheduled for the examinations.

Accordingly, the case is REMANDED for the following actions:

1.  Request service treatment records from the Portsmouth Navy Hospital.  All attempts to retrieve these records should be documented in the claims file.  If unavailable, then notify the Veteran of this.

2.  After any available records are associated with the claims file, then afforded the Veteran a VA orthopedic examination for the purpose of determining the nature and etiology of the Veteran's right shoulder, left shoulder, right hip, left hip, and left elbow disabilities.  The examiner is to review the claims file to become familiar with the Veteran's pertinent medical history, to include the fall in 2001.  Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any disability began during or is causally related to service, to include as due to injuries sustained in 2001 or October 2004, and to include as due to prolonged standing on hard metal decks of ships.  To be clear, the examiner is to provide an opinion for each of the following:  the right shoulder, left shoulder, right hip, left hip, and left elbow.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion.  The examiner is to provide a comprehensive rationale for all opinions.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

3.  After completion of the above, readjudicate the issues on appeal and determine if the benefits sought can be granted.  If any benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review.

The appellant 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 claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. �� 5109B, 7112 (2012).

______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: D MARTZ AMES

text:
Citation Nr: 1809000
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  09-01 569	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

Entitlement to service connection for a hearing disability.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

B. Riordan, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1968 to April 1972.  He served in the Republic of Vietnam from February 1970 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran testified at a Decision Review Officer (DRO) hearing at the VA RO in May 2009 and a transcript of the hearing is of record.

The Veteran's claim was previously remanded by the Board for additional development in March 2012 and September 2014.  The ordered development was performed and the case was returned to the Board.  The Board denied the Veteran's claim in an April 2016 decision.  That denial was subsequently appealed by the Veteran to the United States Court of Veterans Claims (CAVC).  In a September 2017 memorandum decision, the Court set aside the Board's denial and remanded the Veteran's appeal to the Board for further adjudication consistent with the Court's decision.

The Veteran's claim for entitlement to service connection for a hearing disability is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.

REMAND

The Veteran' claim for entitlement to service connection for a hearing disability was denied in an April 2016 Board decision.  In denying the claim, the Board relied on VA audiological examinations conducted in April 2008 and August 2015.  The Board's April 2016 decision was appealed by the Veteran to CAVC.  In September 2017, CAVC issued a memorandum decision setting aside the Board's denial and remanded the Veteran's appeal for further adjudication.  In the September 2017 memorandum decision, CAVC noted:

In the instant decision, the Board denied service  connection for bilateral hearing loss relying on the opinions of the April 2008 and August 2015 VA examiners, opinions that rejected the [V]eteran's  delayed onset hearing loss claim as viable for the sole reason that his audiograms were normal at separation  and he did not develop hearing loss until after service...Neither the examiners nor the Board  considered  other factors, such as [the Veteran's] post-service occupation or whether he experienced  acoustic trauma after service.  Because the April 2008 and August 2015 VA opinions run counter to Hensley and lack adequate supporting rationale, see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301, the Court finds that the Board clearly erred when it determined that those opinions were adequate and relied on them to deny service connection for bilateral hearing loss.  See D'Aries, 22  Vet.App. at 104.

On remand, the case should be returned to the VA examiner who conducted the August 2015 audiological examination to clarify if the Veteran's hearing loss is related to his active service, or began within one year of the Veteran's completion of active service.

Accordingly, the case is REMANDED for the following action:

1. Return the Veteran's claims file to the examiner who conducted the August 2015 audiological examination so a supplemental opinion may be provided.  If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  A new examination is only required if deemed necessary by the examiner.

The VA clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing disability is related to his period of active service, or began within one year after discharge from active service.

The examiner should specifically address the Veteran's post-service occupation, whether he experienced any acoustic trauma after service, and how those factors relate to the Veteran's claim that he has delayed onset hearing loss.

The possibility of delayed onset hearing loss must be addressed.  The examiner is advised that it is not acceptable to conclude that the Veteran's hearing loss is not due to service solely because his hearing was normal at separation.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

2.  Review the claims file and ensure that the foregoing development action has been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

3. Readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations.  If any determination remains unfavorable to the Veteran she and her representative should be furnished a supplemental statement of the case.  Thereafter, the Veteran and his representative should be given opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters 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 (2012).

_________________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. � 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  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) (2017).


judge_norm: M H HAWLEY

condition: tinnitus

condition: skin

text:
Citation Nr: 1810000
Decision Date: 02/14/18    Archive Date: 02/27/18

DOCKET NO.  14-10 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a left shoulder disability.

3.  Entitlement to service connection for a right shoulder disability.

4.  Entitlement to service connection for a left hand disability.

5.  Entitlement to service connection for a right hand disability.

6.  Entitlement to service connection for a residual right thigh wound.

7.  Entitlement to service connection for a bilateral foot disability.

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. Griffin, Counsel

INTRODUCTION

The Veteran had active service from July 1979 to July 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision of the Los Angeles, California, Regional Office.

In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record.

In February 2016, the Board remanded the appeal for further development and it has been returned for further appellate review.

The issues of entitlement to service connection for left and right shoulder disabilities, and for a bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  The Veteran sustained in-service acoustic trauma.

2.  Tinnitus has been present since separation and has been 10 percent disabling since this time.

3.  Extending the benefit of the doubt to the Veteran, the evidence sufficiently relates his currently diagnosed left hand tendonitis to his period of service.

4.  Extending the benefit of the doubt to the Veteran, the evidence sufficiently relates his currently diagnosed right hand tendonitis to his period of service.

5.  Extending the benefit of the doubt to the Veteran, the evidence sufficiently relates his currently diagnosed residual right thigh scar to his period of service.

CONCLUSIONS OF LAW

1.  The criteria to establish service connection for tinnitus have been met.  38 U.S.C.A. �� 1110, 1112, 5107 (West 2016); 38 C.F.R. �� 3.102, 3.303, 3.309, 3.310 (2017).

2.  The criteria for service connection for left hand tendonitis have been met.  38 U.S.C.A. �� 1110, 1154(a), 5107(b) (West 2016); 38 C.F.R. �� 3.102, 3.303 (2017).

3.  The criteria for service connection for right hand tendonitis have been met.  38 U.S.C.A. �� 1110, 1154(a), 5107(b) (West 2016); 38 C.F.R. �� 3.102, 3.303 (2017).

4.  The criteria for service connection for a residual right thigh scar have been met.  38 U.S.C.A. �� 1110, 1154(a), 5107(b) (West 2016); 38 C.F.R. �� 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. � 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Tinnitus Claim

The Board finds the Veteran's account of tinnitus symptomatology and in-service noise exposure to be competent and credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).  He has provided a generally consistent account of military noise exposure and related symptomatology, which the evidence of record tends to confirm.  Although the Veteran's service treatment records are unavailable, service personnel records confirm the Veteran's MOS as an Automotive Mechanic, tending to support his account of the circumstance of his service and his exposure to acoustic trauma in his working environment.  After considering his account of in-service noise exposure and relevant symptomatology with all other evidence of record, the Board finds the Veteran's lay report to be competent, credible and highly probative.  Thus, in the present circumstance, the Board finds that in-service acoustic trauma resulted in the onset of tinnitus and the disease has been continuously present with increasing severity since the Veteran's separation from service.

The Board acknowledges that the May 2016 VA audiological examination provided an opinion tending to weigh against the Veteran's claim; however, with respect to the service connection claim for tinnitus the claim is of little, if any, probative value.  The Board finds that the evidence of record sufficiently establishes that the Veteran experienced tinnitus symptoms in service and continuously since separation but the provided opinion is based largely, if not entirely, on medical evidence or the lack thereof.  Essentially, the examiner's analysis does not reflect sufficient consideration and analysis of the competent lay evidence of record.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As such, the May 2016 VA examination opinion does not reflect adequate consideration and analysis of all relevant evidence of record to support the provided opinion and is conclusory in nature.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).  Thus, the May 2016 VA examination opinion is not probative as to the question at hand.

Although there is no competent medical opinion in support of the claim, tinnitus is an organic disease of the nervous system and there is competent evidence of in-service acoustic trauma.  See Fountain v. McDonald, 27 Vet. App. 258 (2015).  Further, the Veteran provides a competent and credible account of continuity of symptomatology since separation, which has continually been at most 10 percent disabling.  See Jandreau, 492 F.3d at 1376-77.  In sum, tinnitus has been present continuously since separation and is presumed to be of service origin although not otherwise established by medical evidence.  See 38 C.F.R. � 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection for tinnitus is warranted.

Bilateral Hand Claims

As previously noted, the Veteran's service treatment records are unavailable.

The May 2016 VA examination documents the Veteran's account of bilateral hand symptomatology, the relevant medical treatment of the disability, current examination findings, and the Veteran's current diagnosis of bilateral tendonitis of the hands.  The examiner stated that the diagnosed disabilities were not likely related to military service.  In support of this proposition, the examiner noted that there was no service treatment records to confirm the Veteran's treatment for hand related symptoms and that a March 2010 VA treatment record was the first post-service medical evidence of the Veteran seeking hand related treatment.

The Veteran provides a competent and credible account of bilateral hand symptomatology, including in-service onset.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Service personnel records confirm the Veteran's MOS as an Automotive Mechanic, tending to support his account of the circumstance of his service and required duties.  What is more, the Board finds the Veteran's demeanor at his December 2015 Board hearing, including the candor of his responses and the forthcoming nature of his testimony, to provide highly probative evidence as to his credibility.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding, that "[i]n the case of oral testimony, a hearing officer may properly consider the demeanor of the witness.").  Particularly, the Veteran's acknowledgement that he experienced the onset of regular and recurrent hand symptomatology in-service and since separation but was unable to obtain medical treatment due to financial constraints so he self-medicated his symptoms.  See Board Hearing Trans., Dec. 1, 2015, pp. 16-18.  These factors together make the Veteran's statements competent, credible and highly probative.  See Buchanan, supra. ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself."); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to).

Additionally, to the extent May 2016 VA examination opinion purports to address the bilateral hand disability claims, the Board finds the opinion to be inadequate.  The examiner did not address the Veteran's competent, credible, and highly probative account of hand symptomatology.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan.  Stated differently, the reasoning of the May 2016 examination opinion relied largely, if not entirely, on the absence of corroborating medical evidence, without considering or addressing competent evidence of regular and recurrent symptomatology, the impact of financial constraints on the ability to obtain post-service treatment, or reports of self-medication since separation.  Id.; see also Savage v. Gober, 10 Vet. App. 488, 496 (1997) (emphasizing, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology").  Given, the foregoing, the Board finds the May 2016 VA examination opinion to at best be based on an incomplete factual analysis, making the opinion inadequate, and of no probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994).

Essentially, there is no adequate medical nexus opinion of record but this is not fatal to the Veteran's claim, as in the present circumstance lay evidence may serve as a basis to establish the service connection claim.  See Savage.  Initially, the Veteran's report of experiencing the onset of bilateral hand symptomatology, including in-service onset and subsequent recurrent nature, and post-service self-medication to be competent, credible, and highly probative.  The medical evidence of record also confirms that a diagnosis of bilateral hand tendonitis is the most appropriate diagnosis that has been warranted during the pendency of the appeal.  In sum, when considered taken together, the Board finds that the lay evidence describing in-service bilateral hand symptomatology to support the later diagnosis of bilateral hand tendonitis.  See Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'").  Thus, service connection is warranted for right hand tendonitis and left and tendonitis.

Residual Right Thigh Claim

As previously noted, the Veteran's service treatment records are unavailable.

A May 2016 VA examination reports the Veteran's account of sustaining an in-service stabbing to his right thigh, his account of relevant symptomatology, the history of relevant treatment, current examination findings, and his diagnosis of a right thigh scar.  The examiner then stated that the disability was not likely related to service or any occurrence therein.  To support this proposition, the examiner noted that there were no service treatment records documenting any such treatment or symptomatology nor sufficient post-service medical evidence to relate the disability to military service.

The Veteran provides a competent and credible account of in-service of being stabbed in the right thigh in-service.  See Jandreau.  The Veteran's account of the circumstances surrounding this event has been generally consistent, including when seeking unrelated treatment and during his December 2015 Board hearing.  Further, a July 2010 statement from the Veteran's mother tends to corroborate independently his account as to post-service symptomatology.  These factors together tend to bolster the credibility of his account of these matters.  These factors together make the Veteran's statements competent, credible and highly probative.  See Buchanan; Waters.

The Board finds the May 2016 VA examination opinion provided in connection with the Veteran's right thigh claim to be inadequate.  The examiner did not adequately address the Veteran's competent, credible, and highly probative account of sustaining a right thigh stabbing in-service.  See Dalton, Buchanan.  Essentially, the examiner basis to support the provided opinion relied largely, if not entirely, on the absence of corroborating medical evidence, without considering or addressing all competent evidence of record.  Id.; see also Savage.  Given, the foregoing, the Board finds the May 2016 VA examination opinion to, at best, be based on an incomplete factual analysis, making the opinion inadequate, and of no probative value.  See Nieves-Rodriguez; see also Ardison.

Essentially, there is no adequate medical nexus opinion of record but this is not fatal to the Veteran's claim, as in the present circumstance lay evidence may serve as a basis to establish the service connection claim.  See Savage.  Initially, the Veteran's report of sustaining an in-service right thigh stabbing and observing residual scarring/symptomatology to be competent, credible, and highly probative.  The medical evidence of record also confirms that a diagnosis of a right thigh scar is the most appropriate diagnosis that has been warranted during the pendency of the appeal.  In sum, when considered taken together, the Board finds that the lay evidence describing an in-service right thigh stabbing and subsequent scarring to support the later diagnosis of a right thigh scar.  See Davidson.  Thus, service connection for a residual right thigh scar is warranted.

Further inquiry could be undertaken with a view towards development of the tinnitus, bilateral hand, and right thigh claims to obtain an additional medical opinion.  However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue and, in this instance, there is only evidence tending to support the respective claims.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207(1994).  Thus, in reaching the above determinations, the Board has resolved all reasonable doubt in the Veteran's favor.

ORDER

Service connection for tinnitus is granted.

Service connection for left hand tendonitis is granted.

Service connection for right hand tendonitis is granted.

Service connection for a residual right thigh scar is granted.

REMAND

At his December 2015 Board hearing, the Veteran provided competent testimony that he sought VA treatment related to his shoulders and feet after separation in the 1980s.  The record currently does not reflect sufficient attempts to obtain these treatment records, which are particularly relevant given unavailability of the Veteran's service treatment records.

The record suggests the Veteran receives VA regular treatment for his shoulder and foot disabilities, but records generated since November 2016 have not been associated with the claims folder.

On remand, attempts to obtain these records must be undertaken.  See 38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c).

In light of the number of likely relevant outstanding records at this time, VA must also the Veteran contemporaneous VA examinations with respect to his shoulders and feet.  Stefl v. Nicholson, 21 Vet. App. 120, 125(2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).  Accordingly, on remand the Veteran must be provided appropriate examinations.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA shoulder and foot treatment or hospitalization records, dated July 1982 to April 2010, and November 2016 to the present, including but not limited to the West Los Angeles VA Medical Center.  Any negative response(s) must be in writing and associated with the claims folder. All efforts to obtain these records should be documented.

2.  After receipt of all additional records, schedule the Veteran for an appropriate VA examination in connection with his bilateral shoulder claims.  The claims file, as well as a complete copy of this remand, must be reviewed in conjunction with this examination.

The examiner must respond to the following:

The examiner is to diagnose all right and left shoulder pathology present, if any.

As to each diagnosed condition, the examiner is to provide an opinion as to whether it is at least as likely as not that the condition:

(A) is related to or the result of the Veteran's active service, including the duties and responsibilities of his MOS.

(B) initially manifested during active service, or within one year of separation from service.

(C) were caused by a service-connected disability(ies).

(D) were aggravated by service-connected disability(ies).

The provided examination report must reflect consideration of the medical and lay evidence of record (e.g., the Veteran's testimony regarding in- and post-service symptomatology, etc.) and set forth a complete rationale for all findings and conclusions.  Significantly, the Veteran's service treatment records are unavailable and the absence of these records alone is not a sufficient basis to support an opinion that any diagnosed disability is or is not related to service.

All indicated tests or studies must be completed.  The examiner must describe all findings in detail.

3.  After receipt of all additional records, schedule the Veteran for an appropriate VA examination in connection with his bilateral foot claims.  The claims file, as well as a complete copy of this remand, must be reviewed in conjunction with this examination.

The examiner must respond to the following:

The examiner is to diagnose all right and left foot pathology present, if any.

As to each diagnosed condition, the examiner is to provide an opinion as to whether it is at least as likely as not that the condition:

(A) is related to or the result of the Veteran's active service, including the duties and responsibilities of his MOS, marching in military footwear, and having high arches.

(B) initially manifested during active service, or within one year of separation from service.

(C) were caused by a service-connected disability(ies).

(D) were aggravated by service-connected disability(ies).

The provided examination report must reflect consideration of the medical and lay evidence of record (e.g., the Veteran's testimony regarding in- and post-service symptomatology, etc.) and set forth a complete rationale for all findings and conclusions.  Significantly, the Veteran's service treatment records are unavailable and the absence of these records alone is not a sufficient basis to support an opinion that any diagnosed disability is or is not related to service.

All indicated tests or studies must be completed.  The examiner must describe all findings in detail.

4.  After completing the above and ensuring the VA examinations are adequate, complete any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs.

4.  Then, the Veteran's claims must be readjudicated based on the entirety of the evidence of record.  If a claim remains denied, the Veteran should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review.  An appropriate period of time should be allowed for response.

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 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.A. �� 5109B, 7112 (West 2014).

______________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: B MULLINS

judge_role: Veterans Law Judge

disposition: dismissed

text:
��Citation Nr: 18101000

Decision Date: 04/25/18	Archive Date: 04/25/18

DOCKET NO. 16-62 207

DATE:	April 25, 2018

ISSUES DECIDED:	1	ISSUES REMANDED:	0

ORDER

The appeal seeking entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is dismissed.

FINDING OF FACT

In March 2018, the Veteran submitted a written statement to the Board requesting to withdraw the issue of entitlement to an increased rating for bilateral hearing loss.

CONCLUSION OF LAW

The criteria for the withdrawal of the issue of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss have been met.  38 U.S.C. � 7105(b)(2), (d)(5) (2012); 38 C.F.R. �� 20.202, 20.204 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

INTRODUCTION

The Veteran had honorable active duty service with the United States Army from August 1979 to July 1982.  The Veteran served during Peacetime.

This matter is before the Board of Veterans  Appeals (Board) on appeal from a October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The Board notes that jurisdiction of the file is now with the RO in St. Petersburg, Florida.

The Board notes that the Veteran was granted a total disability rating based upon individual employability (TDIU) due to service-connected disabilities, effective August 11, 2017 in an October 2017 rating decision.  The Veteran has not disagreed with this decision or the effective date.

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss

The Board has jurisdiction over a claim where there is a question of fact or law in any matter which under 38 U.S.C. � 511(a) is subject to a decision by the Secretary.  38 U.S.C. � 7104 (2012).  An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter.  38 C.F.R. � 20.204 (2017).  A withdrawal of an appeal is effective when received.  38 C.F.R. � 20.204(b)(3) (2017).

(Continued on the Next Page)

In March 2018, the Veteran submitted a written statement to the Board requesting to withdraw the issue of entitlement to an increased rating for bilateral hearing loss.  See Correspondence, dated March 2018.  Accordingly, the Board does not have jurisdiction to review this issue and they are dismissed.

B. MULLINS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	R. E. Trotter, Associate Counsel