Citation Nr: 18160627
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-06 239
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded.
Entitlement to service connection for a stomach condition, to include as secondary to exposure to contaminated water at Camp Lejeune, is remanded.
INTRODUCTION
The Veteran served on active duty under honorable conditions from June 1981 to November 1981.  The Veteran also has active military service under other than honorable conditions from December 1985 to October 1986.
A December 2015 VA Administrative Decision determined that the Veteran’s service from December 1985 to October 1986 was dishonorable for VA purposes, and as such, is a bar to payment of VA Benefits.  See 38 C.F.R. § 3.12(a), (b), (d)(4) (2017).  Therefore, the Board may only consider the Veteran’s claims based on his period of valid military service from June 1981 to November 1981.
REASONS FOR REMAND
While the Board regrets the delay, additional development is required before the Veteran’s claims are decided.
Entitlement to service connection for bilateral hearing loss
Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
The Veteran seeks service connection for bilateral hearing loss, which he contends is related to his active military service from June 1981 to November 1981.  Specifically, the Veteran described a history of military noise exposure which included gunfire, artillery, aircraft, and large vehicles.  Further, he denied other occupational or recreational noise exposure.
The veteran’s DD-214 reflects that his military occupational specialty (MOS) was Field Artillery Man.  The Veteran underwent a VA hearing examination in October 2015.  The examiner diagnosed bilateral hearing loss and tinnitus.  However, the examiner opined the Veteran’s bilateral hearing loss was less likely than not caused by or a result of his active military service.  As rationale for this opinion, the examiner stated that the Service Treatment Records (STRs) revealed the Veteran had normal hearing sensitivity at his enlistment and separation exams with no significant threshold shifts.  The examiner, unfortunately, failed to explain what constituted a “significant” threshold shift, or why this was relevant to the ultimate determination.  
Further, the examiner stated that there was no evidence that the Veteran’s military noise exposure caused a permanent noise injury affecting hearing sensitivity.  Notwithstanding, in addressing the Veteran’s tinnitus, the examiner noted that the Veteran reported constant bilateral variable pitched ringing, which he first noticed intermittently in 1981 after being at the firing range.  Additionally, the examiner stated that based on the high probability of military noise exposure associated with the Veteran’s MOS and his reported history of military noise exposure, “the Veteran would likely have been exposed to levels of noise which could contribute to the onset of noise-induced tinnitus.”
The Board finds the October 2015 examination report is inadequate for adjudication purposes, as the examiner failed to provide an adequate rationale for the proffered opinion.  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  As such, remand is warranted to obtain an adequate VA examination and opinion. 
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD
The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017).  The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83.
The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, which he contends originated in service and continues to the present.  
In an October 2016 statement, the Veteran alleged his acquired psychiatric disorder was a result of being constantly harassed and physically abused by his drill instructor, Sargent D.  The Veteran stated that he did not report these events during service because his drill instructor threatened him not to tell anyone about his aggression.  Further, he recalled his drill instructor also assaulted Private R., a fellow service member, who left the unit due to these assaults.
The medical evidence of record reflects multiple psychiatric diagnoses including unspecified depressive disorder, major depressive disorder, obsessive-compulsive disorder, and adjustment disorder with mixed emotional features.  Further VA treatment notes indicate that the Veteran’s symptoms may be consistent with PTSD.
The Board notes that pursuant to 38 C.F.R. § 3.304(f)(5) (2017), if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran's service records may corroborate a stressor incident, including medical evidence, statements from family members, roommates, fellow service members, or clergy, or evidence of behavior changes following the claimed assault.  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).  The Board also observes that under the provisions of 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred in service.
In this case, the Veteran reports having depression symptoms since approximately 1984.  The record reflects a history of substance abuse, which the Veteran described as self-medication for his psychiatric symptoms.  Further, VA treatment notes reflect reports of reoccurring nightmares regarding the in-service personal assault.
In this case, no VA examination has been provided regarding the Veteran’s claim of service connection for an acquired psychiatric disorder, to include PTSD.  The Board acknowledges that service connection for acquired psychiatric disorders other than PTSD does not require a verified in-service stressor.  See 38 C.F.R. §§ 3.303, 3.304 (2017).  Under the circumstances outlined above, the Board finds the low threshold required to obtain a VA examination and opinion has been met, and as such, a remand is required to address the nature and etiology of the Veteran’s acquired psychiatric disorder, to include PTSD.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Entitlement to service connection for a stomach condition, to include as secondary to exposure to contaminated water at Camp Lejeune
At the outset, the Board observes, the medical evidence of record reflects a diagnosis of diverticulitis, as well as treatment for abdominal problems.  Additionally, the record shows the Veteran was stationed at Camp Lejeune, North Carolina, from September 1981 to November 1981.
To date, the Veteran has not been afforded a VA examination in response to his claim of service connection for a stomach disorder.  As stated above, the record reflects a current disability.  In addition, the Veteran’s exposure to contaminated water at Camp Lejeune is conceded based on his service from September 1981 to November 1981.
In light of the foregoing, the Board finds the evidence of record satisfies the low threshold needed to obtain VA examinations and medical opinions.  Thus, pursuant to McLendon, a remand is in order.
On remand, relevant ongoing medical records should also be obtained.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

The matters are REMANDED for the following action:
1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims including any recent or additional treatment records related to the claimed disabilities, to include records of VA inpatient hospitalization for suicidal ideations beginning November 23, 2018.  If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).
2. Then, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder.  All pertinent evidence of record, to include this remand, must be made available to and reviewed by the examiner.
Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether any diagnosed psychiatric disorder, other than PTSD, was at least as likely as not (a 50 percent probability or greater) incurred in or is otherwise etiologically related to his period of active service from June 1981 to November 1981.  
If the Veteran is diagnosed with PTSD the examiner should state an opinion with respect to:
•	Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s claimed personal assault occurred in service. 
•	Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD is etiologically related to the claimed in-service personal assault, or is otherwise etiologically related to his period of active service from June 1981 to November 1981.
For the purposes of this opinion, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms.  If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation.
The examiner must provide a complete rationale for all proffered opinions.  If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case.  Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large
3. Schedule the Veteran a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s bilateral hearing loss and stomach disorder.
All pertinent evidence of record must be made available to and reviewed by the examiner.  Any required studies should be performed, and all clinical findings should be reported in detail.
Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion with respect to:
•	Whether the Veteran’s bilateral hearing loss was at least as likely as not (a 50 percent probability or greater) incurred in or is otherwise etiologically related to his period of active service from June 1981 to November 1981, to specifically include as a result of his military noise exposure.
•	Whether any diagnosed stomach disorder was at least as likely as not (a 50 percent probability or greater) incurred in or is otherwise etiologically related to his period of active service from June 1981 to November 1981, to specifically include as a result of his exposure to contaminated water at Camp Lejeune.
For the purposes of this opinion, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms.  If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation.
The examiner must provide a complete rationale for all proffered opinions.  If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case.  Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large.
4. Finally, undertake any other development determined to be warranted, and readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

 
 T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Martinez, Associate 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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