Citation Nr: 18132372
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-34 241
DATE:	September 6, 2018
ORDER
The claim of entitlement to service connection for a hernia is dismissed.
The claim of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.
REMANDED
Entitlement to service connection for a disability characterized by burning of the skin of the bilateral arms is remanded.
Entitlement to service connection for a face rash, to include pseudofolliculitis, is remanded.
Entitlement to service connection for a skin rash in the groin area, to include as a result of herbicide exposure, is remanded.
Entitlement to service connection for a cervical spine disability is remanded.
Entitlement to service connection for a residuals of a chip fracture of the fifth metatarsal bone in the left foot is remanded.
Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
FINDINGS OF FACT
1. In May 2017, prior to the promulgation of a decision in the appeal, the Veteran testified at his Board hearing that he was withdrawing the pending appeal of the issue of entitlement to service connection for a hernia.
2. In May 2017, prior to the promulgation of a decision in the appeal, the Veteran testified at his Board hearing that he was withdrawing the pending appeal of the issue of entitlement to an initial rating in excess of 10 percent for tinnitus.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal concerning the issue of entitlement to service connection for a hernia have been met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
2. The criteria for withdrawal of the appeal concerning the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1969 to October 1970.  This matter comes before the Board on appeal from an August 2013 Regional Office (RO) rating decision.  In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.

Entitlement to service connection for a hernia is dismissed.
Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.
In May 2017, the appellant withdrew the appeal of the claims of entitlement to service connection for a hernia and entitlement to an initial rating in excess of 10 percent for tinnitus at a Board hearing.
Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues.  Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.  
REASONS FOR REMAND
Entitlement to service connection for a disability characterized by burning of the skin of the bilateral arms is remanded.
Entitlement to service connection for a face rash, to include pseudofolliculitis, is remanded.
Entitlement to service connection for a skin rash in the groin area, to include as a result of herbicide exposure, is remanded.
Entitlement to service connection for a cervical spine disability is remanded.
Entitlement to service connection for a residuals of a chip fracture of the fifth metatarsal bone in the left foot is remanded.
At the Veteran’s Board hearing, his wife clarified that the Veteran received his medical treatment at the Naval Base in New Orleans when he first separated from service, and that he subsequently moved his treatment to VA.  (See Board hearing transcript, pages 13-14.)  There is no indication that the Veteran’s Naval Base records have been requested.  
It is also unclear whether a comprehensive set of the Veteran’s VA medical records have been requested, and no VA medical records have been obtained since August 2013.  Because the Veteran has testified that he is currently receiving medical treatment for many of the claimed conditions, the Board finds it necessary to remand these claims in order to obtain these records. 
Entitlement to service connection for PTSD is remanded.
The Veteran underwent a VA examination for PTSD in July 2013, at which time he was determined not to meet the DSM-IV criteria for a PTSD diagnosis.  The VA medical records that are available reflect that PTSD and anxiety disorder are on the Veteran’s list of active problems.  The Veteran testified that he is currently receiving psychiatric treatment.  (See Board hearing transcript, page 23.)  
The Veteran and his wife provided detailed testimony describing the Veteran’s psychiatric symptomatology at the May 2017 hearing.  (See Board hearing transcript, pages 26-30.)  The Veteran’s wife submitted a May 2012 statement in which she describes her husband’s psychiatric symptomatology.  In April 2012 and May 2012, the Veteran submitted personal statements in connection with his PTSD claim.  In May 2017, the Veteran submitted a letter from a woman who knew him before he entered service in which she described the changes that she has noticed in the Veteran following his return from service.  
At the Veteran’s hearing, he and his wife objected that the examiner did not give the Veteran an opportunity to talk about his in-service experiences and that his wife was not allowed to talk to the VA examiner.  (See Board hearing transcript, pages 22-23.)  The Board notes that the only mention of the Veteran’s stressors in the July 2013 VA examination report is a vague reference to “EXPOSURE TO COMBAT IN VIETNAM.”  The Veteran and his wife believe that the examiner did not have the proper information when he determined that the Veteran did not satisfy the criteria for a PTSD diagnosis.  
It is unclear how familiar the examiner was with the Veteran’s pertinent history and current symptoms when he wrote his examination report.  It is also unclear whether the examiner considered whether any other acquired psychiatric disabilities may be diagnosed and whether any such disabilities may be related to service.  Given the above, the Board finds it necessary to remand this claim so that the Veteran may undergo a new VA examination.
Entitlement to service connection for bilateral hearing loss is remanded.
The Board further finds it is necessary to remand the claim of entitlement to service connection for bilateral hearing loss to obtain a new etiology opinion.  
The July 2013 VA examiner was unable to provide an etiology opinion without resorting to speculation.  For his rationale, he noted that no hearing test results were obtained from the Veteran’s pre-induction physical, and only a whispered voice test was utilized for the separation physical.  He noted that the whispered voice test results indicated normal hearing, but that the whispered voice test cannot rule out a unilateral hearing loss or a high frequency hearing loss.
The Board notes that this claim is being remanded, in part, to attempt to obtain records from medical treatment the Veteran received shortly following his separation from service.  Given that the examiner cited the absence of an audiology report on separation, the existence of an audiology report more proximate to his separation from service would potentially be relevant to establishing the Veteran’s claim.  Even if such treatment records are not found, however, the Board finds it appropriate to remand this claim to obtain an etiology opinion that takes into account the Veteran’s credible lay reports of in-service noise exposure. 
Specifically, the Veteran testified at his Board hearing that he was “stationed right there where the big guns, big tanks [were] and they’d be shooting off all through the day and night.  And we didn’t have proper hearing protection.”  (See Board hearing transcript, pages 4-5.)  He reported that he also “was around a lot of explosives.”  (See Board hearing transcript, page 6.)  His DD Form 214 reflects that his military occupational specialty (MOS) was “Combat Engineer.”  The Board therefore finds that the Veteran’s descriptions of his in-service noise exposure are credible and consistent with his circumstances of service.  The Board further notes that the Veteran has been granted entitlement to service connection for tinnitus based on in-service noise exposure.
The matters are REMANDED for the following action:
1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in August 2013.  All appropriate measures should be taken to obtain records of any medical treatment the Veteran received at the Naval Base in New Orleans following his separation from service in October 1970.  
2. Schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability, to include PTSD.  The claims file must be made available to, and reviewed by the examiner.  Any indicated studies should be performed.
Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim.
(a)	For each psychiatric disability identified other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the psychiatric disability had its onset during active service, or is otherwise etiologically related to the Veteran’s active service, including as a result of his reported in-service stressors.  In so opining, the examiner must consider (1) the Veteran and his wife’s testimony at the May 2017 Board hearing (see transcript, pages 26-30.); (2) the wife’s May 2012 statement; (3) the Veteran’s April 2012 and May 2012 statements; and (4) a letter from a woman who knew the Veteran before service submitted by the Veteran in May 2017.  
(b)	With respect to PTSD, provide the examiner with a summary of the Veteran’s reported in-service stressors and instruct the examiner that 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 first determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied.  In so determining, the examiner must consider (1) the Veteran and his wife’s testimony at the May 2017 Board hearing (see transcript, pages 26-30.); (2) the wife’s May 2012 statement; (3) the Veteran’s April 2012 and May 2012 statements; and (4) a letter from a woman who knew the Veteran before service submitted by the Veteran in May 2017.  If the PTSD diagnosis is deemed appropriate, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s PTSD is related to a reported in-service stressor.
A complete rationale for all opinions expressed must be provided.
3. Send the claims file to a qualified individual to obtain an opinion that addresses the following:
Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hearing loss is related to his military service, to include his in-service noise exposure?  
At his May 2017 hearing, he testified that he was “stationed right there where the big guns, big tanks [were] and they’d be shooting off all through the day and night.  And we didn’t have proper hearing protection.”  He reported that he also “was around a lot of explosives.”  His service personnel records reflect that the Veteran’s MOS was “Combat Engineer.”  
In explaining this opinion, the examiner should discuss the nature of the Veteran’s current bilateral hearing loss and should opine as to whether such disability is consistent with the noise exposure that the Veteran has described as having occurred in service notwithstanding the absence of hearing test results from the Veteran’s pre-induction physical, and only a whispered voice test utilized for the separation physical.  The Board further notes that the Veteran has been granted entitlement to service connection for tinnitus based on in-service noise exposure.
If a new examination is deemed necessary, then one should be scheduled.  If an examination is scheduled, all pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  The claims file should be made available to the examiner.
Please provide a complete medical rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles.

 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Elizabeth Jalley, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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