Citation Nr: 0803742 Decision Date: 02/01/08 Archive Date: 02/12/08 DOCKET NO. 07-01 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, claimed as secondary to PTSD. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1949 to June 1950 and from September 1950 to April 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO) that found that prior final March 2003 and June 2003 rating decisions did not contain clear and unmistakable error (CUE). In January 2008, the Board granted the veteran's representative's motion to advance the case on the Board's docket due to the appellant's advanced age. As noted, these claims were originally based on allegations that there was CUE in final March and June 2003 rating decisions that, in pertinent part, denied service connection for PTSD, hypertension, bilateral hearing loss, and tinnitus, and denied TDIU. However, in July 2007, the veteran submitted a June 2007 record from the Navy Personnel Command (NPC) entitled Transmittal of and/or Entitlement to Awards. This document states that a review of the veteran's military records revealed that he was entitled to receive several medals and ribbons, including the Combat Action Ribbon. Under 38 C.F.R. § 3.156(c) "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim" on the merits de novo. As receipt of the Combat Action Ribbon denotes that the veteran engaged in combat with the enemy and entitles him to relaxed evidentiary standards under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), his claims must be reconsidered based on this evidence under 38 C.F.R. § 3.156(c). Receipt of this service department evidence essentially renders the CUE claims moot and any decision made as a result of this new evidence will subsume the March 2003 and June 2003 decisions. The veteran is not prejudiced by the Board affording him a broader (and more liberal) scope of review in considering his claims de novo. The issues have been characterized accordingly. A December 2007 Informal Hearing Presentation from the veteran's representative raises the issue of whether there was CUE in a September 1957 rating decision that reduced the rating for service-connected hepatitis. Since this issue has not been developed for appellate review, it is referred to the RO for appropriate action. The issues of entitlement to service connection for hypertension, bilateral hearing loss, and tinnitus, and to TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDINGS OF FACT 1. The veteran's awards and decorations include the Combat Action Ribbon. 2. He is shown to have a medical diagnosis of PTSD related to his experiences in service. CONCLUSION OF LAW Service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Since the determination below constitutes a full grant of the claim of service connection for PTSD, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice content or timing is harmless. Furthermore, as the benefit sought is granted, it is not prejudicial that the Board is considering and relying upon evidence received in July 2007 in the first instance. B. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). 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); West v. Brown, 7 Vet. App. 70 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As noted above, a June 2007 NPC record states that the veteran was awarded a Combat Action Ribbon (denoting he engaged in combat). Service personnel records previously associated with the claims file report the veteran "[p]articipated in operations against enemy forces in south and central Korea" from August 1951 to January 1952. The veteran's DD Form 214 and service personnel records indicate that during this time frame his military specialty (MOS) was 0311, which was rifleman, (U.S. Marine Corps MOS Manual (1956), and that he was stationed with the B Company, 1st AmTrac Battalion. Hence, the Board finds that while the record from the NPC has not been authenticated, it is consistent with evidence already of record regarding the veteran's service. Receipt of the Combat Action Ribbon is evidence that he engaged in combat with the enemy during service. His claimed stressors include seeing and helping wounded and dead soldiers in Korea. As this stressor is consistent with the circumstances of his combat service, his lay testimony establishes its occurrence. On August 2002 VA examination, the examiner provided an Axis I diagnosis of PTSD and opined that PTSD was related to the veteran's service as he was exposed to significant stressors therein, "including repetitive witnessing of severely wounded and dying soldiers." Additionally, an October 2001 letter from a VA social worker states that the veteran manifests symptoms of combat related PTSD under DSM-IV. As this competent evidence supports the veteran's claim and there is no evidence to the contrary, service connection for PTSD is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. REMAND A VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. The RO issued a VCAA notification letter in October 2001. While this letter substantially complied with VCAA notice requirements, it did not explicitly inform the veteran to submit to VA all pertinent evidence in his possession. Thus, the fourth prong of VCAA notification was not met. Hence, VCAA compliant notice for all remaining claims should be provided on remand. The veteran's claim of service connection for hypertension is premised on a theory of causality attributing the hypertension to PTSD. When the RO addressed this matter PTSD was not service-connected. It now is. Records show the veteran has hypertension. Therefore, what remains to be resolved is whether the veteran's hypertension is, indeed, causally related to (including aggravated by) his PTSD. This is a medical question best resolved by a medical opinion. The veteran claims that his hearing loss and tinnitus were incurred in service. As he was awarded a Combat Action Ribbon and his MOS during his service in Korea was rifleman, it may be assumed that he experienced noise exposure in service. Private treatment records from audiologist D. G. show the veteran has moderately severe high frequency hearing loss and that he reported experiencing tinnitus bilaterally. D. G. also states that the veteran's hearing loss was consistent with noise induced hearing loss and that his exposure to loud noise in the military "may have contributed to his present hearing loss." The veteran has not been afforded a VA audiological evaluation with audiometry studies. Under 38 C.F.R. § 3.159(c)(4), a VA medical examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Here, the record indicates he may have hearing loss and tinnitus and there is evidence of noise exposure in service. However, the opinion of record (as to the etiology of the hearing loss) is phrased in terms that are speculative and cannot be relied upon to make a decision in these claims. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). There is insufficient evidence to determine whether the veteran has hearing loss and tinnitus that are related to noise exposure in service. Consequently, a VA examination to obtain a medical opinion is indicated. The veteran's claim seeking TDIU is inextricably intertwined with the claims seeking service connection for hypertension, bilateral hearing loss, and tinnitus (if service connection is granted for any of these disabilities, the impact of such disability on the veteran's employability would have to be considered). Hence, adjudication of the TDIU claim must be deferred pending resolution of the service connection claims (and implementation of the award of service connection for PTSD). Accordingly, the case is REMANDED for the following: 1. For all claims addressed by this remand, the RO should send the veteran a letter that provides the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include notification that he should submit any pertinent evidence in his possession. 2. The RO should arrange for the veteran to be examined by a cardiologist to determine the nature and etiology of his hypertension. The examiner must review the veteran's claims file in conjunction with the examination. The examiner should opine whether it is at least as likely as not (a 50% or better probability) that the veteran's hypertension was (a) caused (proximately due to) or (b) aggravated by (and if so, to what degree?) his service- connected PTSD. The examiner must explain the rationale for all opinions given. 3. The RO should also arrange for the veteran to be examined by an otolaryngologist (to include audiometric studies) to determine the likely etiology of his bilateral hearing loss and tinnitus. The examiner must review the veteran's claims file in conjunction with the examination and must explain the rationale for all opinions given. The examiner must respond to the following questions: a) Is it at least as likely as not (50 percent or better probability) that the veteran has a hearing loss disability by VA standards that is related to his service, to include as due to noise exposure therein; and b) Is it at least as likely as not (50 percent or better probability) that the veteran has tinnitus that is due to noise exposure during military service. 4. The RO should arrange for any further development necessary prior to readjudicating the TDIU claim, to include scheduling an examination, if indicated. 5. The RO should then re-adjudicate the remaining claims (the claim of TDIU in light of all evidence added to the record, and the ultimate determination in the matters of service connection for hypertension, bilateral hearing loss, and tinnitus). If any remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs