Citation Nr: 1047605	
Decision Date: 12/22/10    Archive Date: 12/30/10

DOCKET NO.  08-28 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a respiratory 
condition, claimed as residuals of bronchial pneumonia.  

4.  Entitlement to service connection for a psychiatric 
condition, to include depression and posttraumatic stress 
disorder (PTSD). 

5.  Entitlement to an initial compensable evaluation for a scar 
on the forehead with retained subcutaneous mobile nodule.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran had active service from November 1965 to November 
1967.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a February 2008 rating decision from the 
Department of Veterans Affairs (VA) Regional Office (RO) in St. 
Petersburg, Florida.

In July 2010, a Board video conference hearing was held before 
the undersigned Veterans Law Judge.  A transcript of that hearing 
is of record.  At the hearing, the parties agreed to hold the 
record open for 60 days to allow for the submission of additional 
evidence; additional evidence was provided at the hearing which 
was accompanied by a waiver and has been associated with the 
claims folder.  

The United States Court of Appeals for Veterans Claims (Court) 
has held that the scope of a mental health disability claim 
includes any mental disability that may reasonably be encompassed 
by the claimant's description of the claim, reported symptoms, 
and the other information of record.  See Clemons v. Shinseki, 23 
Vet. App. 1 (2009).  As will be explained herein, the matter on 
appeal in this case includes consideration of service connection 
for PTSD, and for psychiatric disorders other than PTSD, 
including depression.  Accordingly, the Board characterized the 
claim more broadly as reflected on the cover page.


The service connection claim for scarring of the left nose 
area has been raised by the record, but has not been 
adjudicated by the Agency of Original Jurisdiction (AOJ).  
Therefore, the Board does not have jurisdiction over it, 
and it is referred to the AOJ for appropriate action.  

The service connection claims for respiratory and psychiatric 
conditions are addressed in the REMAND portion of the decision 
below and are REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence of record shows that the Veteran does not 
manifest left ear hearing loss within the meaning of VA 
regulations.  

2.  The evidence of record does not show that the Veteran's 
currently manifested right ear hearing loss has been chronic and 
continuous since service, or that it is etiologically related to 
his period of active military service.

3.  The evidence of record does not show that the Veteran's 
currently manifested tinnitus has been chronic and continuous 
since service, or that it is etiologically related to his period 
of active military service.

4.  Since September 24, 2007, the forehead scar with retained 
foreign matter has been manifested by pain, but without any of 
the characteristics of disfigurement.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by 
active service, and may not be so presumed.  38 U.S.C.A. §§ 1101, 
1112, 1113, 1110, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010).

2.  Tinnitus was not incurred in or aggravated by active service, 
and may not be so presumed.  38 U.S.C.A. §§ 1101, 1112, 1113, 
1110, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.304, 3.307, 3.309 (2010).

4.  With resolution of the doubt in favor of the Veteran, the 
criteria for an initial 10 percent rating for residuals of a scar 
on the forehead with retained material have been met.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.118, 
Diagnostic Codes 7800, 7804 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 
5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to 
assist a claimant at the time that he or she files a claim for 
benefits.  As part of this assistance, VA is required to notify 
claimants of what they must do to substantiate their claims.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

Specifically, VA must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate the 
claim; (2) that the claimant is to provide; and (3) that VA will 
attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 
403 (2005) (outlining VCAA notice requirements).  This notice 
must be provided prior to an initial unfavorable decision on a 
claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO informed the Veteran of VA's duty to assist him in the 
development of evidence pertinent to his service connection 
claims in letters dated in and September 2007 and April 2008, 
wherein the Veteran was advised of the provisions relating to the 
VCAA.  The Veteran was advised that VA would assist him with 
obtaining relevant records from any Federal agency, which may 
include medical records from the military, from VA hospitals 
(including private facilities where VA authorized treatment), or 
from the Social Security Administration. With respect to private 
treatment records, the letter informed the Veteran that VA would 
make reasonable efforts to obtain private or non-Federal medical 
records, to include records from State or local governments, 
private doctors and hospitals, or current or former employers.  
Furthermore, the VA included copies of VA Form 21-4142, 
Authorization and Consent to Release Information, which the 
Veteran could complete to release private medical records to the 
VA.

The Board further observes that during the pendency of this 
appeal, on March 3, 2006, the Court issued a decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006), which held that the VCAA notice requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five 
elements of a service connection claim.  Those five elements 
include: (1) veteran status; (2) existence of a disability; (3) a 
connection between the Veteran's service and the disability; (4) 
degree of disability; and (5) effective date of the disability.  
The Veteran was provided with notice of the type of evidence 
necessary to establish a disability rating or effective date as 
was discussed in the Dingess case in September 2007 and April 
2008, prior and subsequent to the initial adjudication of the 
claims in February 2008.  Subsequent adjudication of the claims 
on appeal was undertaken in a Statement of the Case (SOC) issued 
in August 2008.  This cured any defect as to the timing of the 
notice.  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) 
(VA cured failure to afford statutory notice to claimant prior to 
initial rating decision by issuing notification letter after 
decision and readjudicating claim and notifying claimant of such 
readjudication in the statement of the case).

With respect to the claim for a forehead scar with retained 
material, this arises from the Veteran's disagreement with the 
initial disability rating following the grant of service 
connection for this condition.  Once service connection is 
granted the claim is substantiated, additional notice is not 
required and any defect in the notice is not prejudicial.  
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the 
burden of demonstrating any prejudice from defective notice with 
respect to the downstream elements.  Goodwin v. Peake, 22 Vet. 
App. 128 (2008).  That burden has not been met in this case.

The Board also finds that all of the relevant facts have been 
properly developed, and that all available evidence necessary for 
an equitable resolution of the issues on appeal has been 
obtained.  The Veteran's service treatment records (STRs) and 
post-service treatment records were obtained.  Records from the 
Social Security Administration (SSA) are also on file as are 
private medical records of Dr. N., (although it appears that the 
records of Dr. N. are largely unrelated to the claims on appeal).  
The Veteran was afforded VA examinations in 2008 in connection 
with the claims currently on appeal and the file includes 
contentions and statements of the Veteran and his representative, 
as well as hearing testimony provided in July 2010.

Significantly, neither the Veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claims that has not been obtained.  Hence, no 
further notice or assistance to the Veteran is required to 
fulfill VA's duty to assist the appellant in the development of 
the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 
143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  Accordingly, the Board finds that VA has complied, to 
the extent required, with the duty-to-assist requirements found 
at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e).

Service Connection Claims

Generally, in order to establish direct service connection for a 
claimed disorder, there must be (1) evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease or 
injury; and (3) evidence of a nexus between the claimed in- 
service disease or injury and the current disability.  See 
Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may be established for a disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110.  For the showing of chronic disease 
in service there is required a combination of manifestations 
sufficient to identify the disease entity, and sufficient 
observation to establish chronicity at the time.  38 C.F.R. § 
3.303(b).  If chronicity in service is not established, a showing 
of continuity of symptoms after discharge is required to support 
the claim.  Id.  Service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence 
establishes that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d).

Service connection for certain diseases, such as an organic 
disease of the nervous system like sensorineural hearing loss, 
may be also be established on a presumptive basis by showing that 
such a disease manifested itself to a degree of 10 percent or 
more within one year from the date of separation from service.  
38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such 
cases, the disease is presumed under the law to have had its 
onset in service even though there is no evidence of such disease 
during the period of service.  38 C.F.R. § 3.307(a).

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for rejecting 
any evidence favorable to the claimant.  See Masors v. Derwinski, 
2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 
(1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal 
weight is not accorded to each piece of evidence contained in the 
record; every item of evidence does not have the same probative 
value.

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of a 
matter, the benefit of the doubt shall be given to the claimant.  
38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding 
service origin, such doubt will be resolved in the favor of the 
claimant.  Reasonable doubt is doubt which exists because of an 
approximate balance of positive and negative evidence which does 
not satisfactorily prove or disprove the claim.  38 C.F.R. § 
3.102.  The question is whether the evidence supports the claim 
or is in relative equipoise, with the claimant prevailing in 
either event, or whether a fair preponderance of the evidence is 
against the claim, in which event the claim must be denied.  See 
Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

Factual Background

In September 2007, the Veteran filed original service connection 
claims for bilateral hearing loss and tinnitus.  His DD 214 
reflects service with the United States Army with an MOS of Light 
Weapons Infantryman.  

The STRs include an enlistment examination report of November 
1965 reflecting that clinical evaluation of the ears and drums 
was normal and that hearing acuity was within normal limits.  The 
October 1967 separation examination report also revealed that 
clinical evaluation of the ears and drums was normal and that the 
Veteran denied having hearing loss or ear trouble.  Audiological 
testing revealed that pure tone thresholds, in decibels, 
(presumed ASA units converted to ISO units as shown in 
parentheses) were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5 (10)
-5 (5)
0 (10)
XX 
0 (5)
LEFT
-5 (10)
-5 (5)
-5 (5)
XX
0 (5)

An assessment dated in November 1967 showed a PULHES profile of 
111111.  (The "PULHES" profile reflects the overall physical and 
psychiatric condition of an individual on a scale of 1 - high 
level of fitness, to 4 - medical condition or physical defect 
that is below the level of medical fitness required for retention 
in the military service.  The "P" stands for "physical capacity 
or stamina," the "U" indicates "upper extremities," the "L" is 
indicative of "lower extremities," the "H" reflects the condition 
of the "hearing and ears," the "E" is indicative of the "eyes," 
and the "S" stands for "psychiatric condition."  Odiorne v. 
Principi, 3 Vet. App. 456, 457 (1992)).

A VA audio examination was conducted in January 2008 and the 
claims file was reviewed.  The Veteran gave a history of 
bilateral hearing loss, onset of 15-20 years previous to the 
examination, and constant bilateral tinnitus manifested by 
buzzing (onset of 4 to 6 years previous to the examination).  He 
gave a history of sustaining acoustic trauma in service due to 
weapons fire, aircraft, explosions and mortar fire, without the 
use of hearing protection.  The Veteran also reported that he had 
not sustained an post-service occupational noise exposure.

Upon audiological evaluation, pure tone thresholds, in decibels, 
were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
30
35
35
LEFT
25
25
25
30
30

Regarding the right ear, a pure tone hearing threshold average of 
32.5 and a speech recognition score of 96 percent were reported.  
With respect to the Veteran's left ear, a pure tone hearing 
threshold average of 27.5 and a speech recognition score of 100 
percent were reported.  Bilateral hearing loss, not disabling, 
diagnosed as bilaterally mixed hypacusis, major conductive 
component bilaterally was recorded.  

The examiner mentioned that he reviewed the service treatment 
records as well as VA records which included only a Tampa hearing 
screening of December 2004 with a "pass" result (the Board 
notes that this specific evidence could not be located in the 
file).  He opined that bilateral hearing loss and tinnitus were 
not caused by or the result of military service/acoustic trauma, 
explaining that the hearing loss was largely conductive in nature 
and not a product of noise exposure bilaterally.  The examiner 
noted that normal bilateral hearing on separation from service 
and a normal hearing screening in 2004 indicated hearing loss and 
tinnitus of recent onset, secondary to middle ear/ear drum 
aberration bilaterally.  

In a statement provided in March 2008, the Veteran indicated that 
acoustic trauma during service was sustained not only from light 
weapons, but also from machine and tank gun fire, and operating 
an armor personnel carrier without hearing protection.  The 
Veteran also mentioned that he was a 45 range instructor for 
officers.  He stated that his problems started when he was 
released from service and had gotten worse over the past 4-6 
years, as manifested by a constant ringing and buzzing noise.

Records from the Social Security Administration (SSA) reflect 
that disability benefits were approved effective from 1997, due 
to a primary diagnosis of chronic ischemic heart disease, with no 
secondary diagnosis.  There was no indication either in the SSA 
decision or the records supporting the decision that hearing 
loss, tinnitus, or any other ear condition was a factor 
contributing to the disability determination.  

The Veteran presented testimony at a Board video conference 
hearing held in July 2010.  He indicated that he had no hearing 
problems prior to service.  He also indicated that he did not 
serve in Vietnam and was not exposed to combat but was assigned 
to mechanized infantry duty, during which time he was exposed to 
acoustic trauma, without using hearing protection.  He stated 
that he did not recall complaining of hearing loss or tinnitus 
while in service.  The Veteran clarified that he had experienced 
symptoms of tinnitus since service which had gotten worse 
approximately 15 years prior to the hearing (i.e. about 1995).  

A.	 Bilateral Hearing Loss

The Veteran maintains that in conjunction with his MOS as a light 
weapons infantryman, he was exposed to acoustic trauma routinely, 
without the benefit of hearing protection, resulting in 
subsequent hearing loss and tinnitus, for which service 
connection is warranted.   

With respect to the hearing loss claim, the provisions of 38 
C.F.R. § 3.385 define disability due to impaired hearing.  For 
the purpose of applying the laws administered by VA, impaired 
hearing is considered to be a disability when the auditory 
threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 
Hertz is 40 decibels or greater; or when the auditory thresholds 
for at least three of those frequencies are 26 decibels or 
greater; or when speech recognition scores using the Maryland CNC 
Test are less than 94 percent.  


Concerning the claimed left ear hearing impairment, the Hickson 
element (1) is not met because none of the auditory thresholds 
reach 40 decibels, and only two of the frequencies carry auditory 
thresholds above 26; nor is speech discrimination less than 94 
percent.  As such, the Veteran does not have a hearing disability 
affecting the left ear as defined by VA regulations at 38 C.F.R. 
§ 3.385.  In view of these circumstances, the analysis with 
regard to left ear hearing impairment ends as there is no current 
hearing disability of the left ear for which service connection 
may be granted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992) (without a current disability, a claim for entitlement to 
service connection cannot be sustained).  

In regard to right ear hearing impairment, Hickson element (1) 
evidence of currently manifested hearing loss has been presented.  
Specifically, upon VA audiological evaluation conducted in 2008, 
hearing impairment affecting the right ear is a disability as 
defined under 38 C.F.R. § 3.385, because auditory thresholds at 
all of the applicable frequencies were above 26.  

With regard to Hickson element (2) for the right ear hearing 
impairment, the Veteran has reported experiencing acoustic trauma 
in conjunction with his service in the United States Army.  He is 
competent to describe noise exposure sustained during service and 
his statements and testimony to this effect are considered 
credible.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board 
notes that absolutely no hearing deficit was demonstrated in 
either ear as shown by the 1967 separation examination report.  
In fact, a hearing disability for the right ear as defined under 
38 C.F.R. § 3.385, was not shown at any time prior to 2008.  When 
audiometric test results at a Veteran's separation from service 
do not meet the regulatory requirements for establishing a 
disability at that time, he or she may nevertheless establish 
service connection for a current hearing disability by submitting 
evidence that the current disability is causally related to 
service.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

Even having established that the Veteran sustained acoustic 
trauma in service, the Board points out that acoustic trauma and 
noise exposure sustained in service are not, in and of 
themselves, disabilities subject to service connection under VA 
regulations.  A chronic disease need not be diagnosed during the 
presumptive period under 38 C.F.R. § 3.307(c), but if not, there 
must then be shown by acceptable medical or lay evidence, 
characteristic manifestations of the disease to the required 
degree, followed without unreasonable time lapse by definite 
diagnosis.  Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).  
In this case, right ear hearing loss meeting the threshold 
requirements of 38 C.F.R. § 3.385 was not initially shown until 
2008, approximately 40 years after the Veteran's separation from 
service; as such, service connection on a presumptive basis is 
not warranted.  

Under 38 C.F.R. § 3.303(b), a method of establishing the second 
and third Hickson elements is through a demonstration of 
continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 
303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); 
see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  
Continuity of symptomatology may be established if a claimant can 
demonstrate (1) that a condition was "noted" during service; (2) 
evidence of post-service continuity of the same symptomatology; 
and (3) medical or, in certain circumstances, lay evidence of a 
nexus between the present disability and the post-service 
symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 
Vet. App. at 253 (lay evidence of in-service incurrence 
sufficient in some circumstances for purposes of establishing 
service connection); 38 C.F.R. § 3.303(b).  

In this case, continuity and chronicity of hearing loss is not 
established by the STRs and post-service clinical records.  In 
hearing testimony presented in 2010 the Veteran indicated that he 
had experienced hearing loss since service.  However this lay 
testimony is contradicted by the Veteran's own statements of 
history provided upon VA examination of 2008, at which time he 
indicated that he had only noticed hearing loss 15 to 20 years 
prior to the examination, or at the earliest in 1988, still more 
than 20 years after his discharge from service.  See Caluza v. 
Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. 
Cir. 1996)(holding that credibility can be impeached generally by 
a showing of interest, bias, inconsistent statements, or, to a 
certain extent, bad character).

With regard to the decades-long evidentiary gap between active 
service and the earliest post-service findings of right ear 
hearing loss, the lack of any evidence of continuing complaints, 
symptoms, or findings for many years between the period of active 
duty and the first evidence of right ear hearing loss is itself 
evidence which tends to show that hearing loss has not been 
chronic and continuous since service.  See Maxson v. Gober, 230 
F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment 
is evidence that there has not been a continuity of 
symptomatology, and it weighs heavily against the claim on a 
direct basis).  Based on the total absence of any indications of 
hearing loss until 2008, about 40 years after discharge from 
service, coupled with the absence of credible lay evidence 
attesting to hearing loss since service, chronicity and 
continuity of hearing loss since service is not established.  
38 C.F.R. § 3.303(b) (2010).  

The critical issue in this case is whether the Veteran's 
currently manifested right ear hearing loss is related to noise 
exposure sustained during service.  The requirement of an 
evidentiary showing of an etiological relationship has been 
repeatedly reaffirmed by the U.S. Court of Appeals for the 
Federal Circuit, which has held that a veteran seeking disability 
benefits must establish the existence of a disability and a 
connection between the veteran's service and the disability 
claimed.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  
Essentially, this is the third Hickson element.

Although the Veteran was not treated for or diagnosed with 
hearing loss during service or for many years after his 
discharge, the Board notes that the question is whether this 
condition is nevertheless at least as likely as not etiologically 
related to service or any incident therein, to specifically 
include acoustic trauma sustained in service.  38 C.F.R. § 
3.303(d).  The record contains one medical opinion addressing 
this matter.  Among the factors for assessing the probative value 
of a medical opinion are the physician's access to the claims 
file and the thoroughness and detail of the opinion.  See Prejean 
v. West, 13 Vet. App. 444, 448-9 (2000).  

In 2008, a VA examiner having recorded the Veteran's history of 
in-service and post-service noise exposure and having reviewed 
the claims folder and examination results, concluded that it was 
not likely that the Veteran's hearing loss was caused by or the 
result of his military service, primarily reasoning that 
explaining that the hearing loss was largely conductive in nature 
and not a product of noise exposure bilaterally.  The examiner 
also observed that there was normal hearing on separation from 
service and a normal hearing screening in 2004, indicating 
hearing loss and tinnitus of recent onset, secondary to middle 
ear/ear drum aberration bilaterally.  This opinion is found to 
carry significant weight.  In addition, the file contains no 
professional medical opinion to the contrary and the Veteran has 
not provided any competent medical evidence to diminish its 
significant probative weight.  See Wray v. Brown, 7 Vet. App. 
488, 492-93 (1995).

In addition, the lay assertions from the Veteran as to the 
etiology of his hearing loss (service related due to remote 
acoustic trauma sustained therein) are not consistent with the 
objective evidence of record, which does not establish continuity 
and chronicity of hearing loss since service either by virtue of 
lay or clinical evidence, or even suggest a relationship between 
currently manifested bilateral hearing loss and service-related 
acoustic trauma.  See Davidson v. Shinseki, 581 F.3d 1313, (Fed 
Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 
(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 
2006).  Accordingly, for the reasons explained above, the lay 
statements and contentions of the Veteran are of lower probative 
value are as compared to the clinical evidence and VA medical 
opinion on file.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 
(1998); (the probative value of a medical opinion comes from when 
it is the factually accurate, fully articulated, and sound 
reasoning for the conclusion, not the mere fact that the claims 
file was reviewed.)

Overall, the evidence is not in relative equipoise, as there is 
evidence of normal hearing acuity at separation from service in 
1967, and a 40-year gap between active service and the first 
indications of hearing loss meeting the threshold requirements of 
38 C.F.R. § 3.385.  Moreover, the most probative evidence of 
record addressing the etiology and onset of the Veteran's hearing 
loss weighs against service incurrence.  Although the Veteran is 
entitled to the benefit of the doubt where the evidence is in 
approximate balance, the benefit of the doubt doctrine is 
inapplicable where, as here, the preponderance of the evidence is 
against the claim.  See generally Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 
2001).  The benefit sought on appeal is therefore denied.


B.	 Tinnitus

Regarding the Veteran's claim for tinnitus, he does carry a 
current diagnosis of this condition according to the 2008 VA 
examination, at which time tinnitus was first diagnosed.  As 
pointed out by the Veteran's representative, tinnitus has been 
defined as "a noise in the ear, such as ringing, buzzing, 
roaring, or clicking."  See Dorland's Illustrated Medical 
Dictionary 1714 (28th ed. 1994).  See also Wanner v. Principi, 
370 F.3d 1124 (Fed. Cir. 2004). 

The Board would note that in Charles v. Principi, 16 Vet. App. 
370, 374-375 (2002), the Court specifically held that tinnitus is 
a condition which is capable of lay observation.  See also 
Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The 
Veteran has provided statements to the effect that he has 
suffered from tinnitus in service, with chronic symptomatology 
thereafter.  He is considered competent, as a lay person, to 
provide an account of that symptomatology.

However, the Veteran's account of continuity/chronicity of 
symptoms in and since service, is not shown to be credible.  In 
weighing the credibility, VA may consider interest, bias, 
inconsistent statements, internal inconsistency, facial 
plausibility, self interest, consistency with other evidence of 
record, malingering, desire for monetary gain, and demeanor of 
the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The 
Veteran's lay statements related to his tinnitus symptomatology 
have been inconsistent.  Upon VA examination of 2008, he gave a 
history of constant bilateral tinnitus manifested by buzzing, 
onset to 4 to 6 years previous to the examination (around 2002 to 
2004 ).  In hearing testimony, the Veteran clarified that he had 
experienced symptoms of tinnitus since service which had gotten 
worse approximately 15 years prior to the hearing (i.e. about 
1995).  The Veteran's statements are further contradicted by the 
October 1967 separation examination, at which time the Veteran 
denied having hearing loss or ear trouble, and the November 1967 
PULHES profile, which reflected no impairment relating to the 
ears.  



The Board may weigh the absence of contemporaneous medical 
evidence against the lay evidence in determining credibility, but 
the Board cannot determine that lay evidence lacks credibility 
merely because it is unaccompanied by contemporaneous medical 
evidence.  Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 
2006).  In this regard, the STRs are entirely negative for any 
mention of tinnitus or symptoms associated therewith.  See Curry 
v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous 
evidence has greater probative value than history as reported by 
the veteran).  Moreover, the earliest lay evidence of record even 
mentioning tinnitus was dated in 2007, at which time the Veteran 
filed a service connection claim for this benefit.  The 40-year 
period since service, which is negative for complaints or 
treatment relating to tinnitus and during which time the Veteran 
never filed a service-connected clam for tinnitus, is evidence 
that there has not been a continuity of symptomatology, and it 
weighs heavily against the claim.  See Mense v. Derwinski, 1 Vet. 
App. 354, 356 (1991) (holding that VA did not err in denying 
service connection when the veteran failed to provide evidence 
which demonstrated continuity of symptomatology, and failed to 
account for the lengthy time period for which there is no 
clinical documentation of his low back condition).  Indeed, a 
confirmed diagnosis of tinnitus was not documented until the 
January 2008 VA examination.  See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000) (noting that it was proper to consider the 
veteran's entire medical history, including the lengthy period of 
absence of complaint with respect to the condition he now 
raised).  

In light of the lack of evidence of tinnitus during service or 
upon separation, the Veteran's contradictory and inconsistent 
statements relating to chronicity and continuity of ear problems 
- to include tinnitus, and the decades long evidentiary gap 
without clinical indications or even complaints of tinnitus, the 
Board can find no plausible reason to afford any probative value 
to the Veteran's lay assertions that he has had tinnitus since 
service.  As such, service connection cannot be granted on the 
basis of chronicity and continuity of symptomatology.  See 
38 C.F.R. § 3.303(b).

Even acknowledging that the Veteran's account of sustaining 
military noise exposure as credible, there still must be 
competent evidence presented establishing a nexus or relationship 
between currently diagnosed tinnitus and his military noise 
exposure.  A veteran seeking disability benefits must establish 
not only the existence of a disability, but also an etiological 
connection between his military service and the disability.  
Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. 
West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  This is the third 
part of the Hickson analysis.  No such evidence has been 
presented in this case.

In January 2008, an opinion addressing the matter of the etiology 
was offered by a VA examiner.  The examiner opined that tinnitus 
was less likely than not caused by or a result of acoustic trauma 
sustained during service, reasoning that hearing loss was largely 
conductive in nature and not a product of noise exposure 
bilaterally.  The examiner further noted that normal bilateral 
hearing on separation from service and a normal hearing screening 
in 2004 indicated hearing loss and tinnitus of recent onset, 
secondary to middle ear/ear drum aberration bilaterally.  The VA 
examiner based his professional opinion on the record as a whole, 
to include the Veteran's STRS, lay history and post-service 
evidence, and the lack of objective evidence of any hearing or 
ear problems for decades following the Veteran's service.  See 
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting 
that it was proper to consider the veteran's entire medical 
history, including the lengthy period of absence of complaint 
with respect to the condition he now raised).  In essence, the 
opinion offered was negative, the file contains no professional 
medical opinion to the contrary, and the Veteran has not provided 
any competent medical evidence to diminish its probative weight.  
See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

In summary, the preponderance of the evidence is against the 
Veteran's service connection claim for tinnitus.  Although the 
Veteran is entitled to the benefit of the doubt where the 
evidence is in approximate balance, the benefit of the doubt 
doctrine is inapplicable where, as here, the preponderance of the 
evidence is against the claims.  See generally Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 
1361 (Fed. Cir. 2001).  The benefits sought on appeal are 
therefore denied.



Increased Initial Evaluation 

In a rating action dated in February 2008, service connection was 
established for a scar on the forehead with retained material, 
for which a noncompensable disability rating was assigned 
effective from September 2007, when the Veteran's original 
service connection claim was filed.
 
The grant was based on STRs, which included an entry dated in 
November 1966 recounting that the Veteran was seen due to having 
a small metallic fragment on the forehead, which the examiner was 
unable to palpate.  

Also on file at the time of the grant was a January 2008 report 
of a VA scar examination.  The history indicated that in 1966, 
the Veteran reported that he was working on a personnel carrier 
and the cleet on the track fragmented and exploded into his 
forehead.  The Veteran also mentioned that the left side of his 
nose was also injured as a result of this incident, leaving a 
scar (as this condition is not service-connected it will not be 
discussed further, but it has been mentioned in the Introduction 
portion of this decision as a newly raised claim).  The examiner 
reported that there was a scar present on the left mid forehead, 
which was 5 mm x 1 mm and linear, with a retained subcutaneous 
mobile nodule.  The examiner indicated that the scar was not: 
deep; elevated; depressed; superficial; inflamed; unstable, 
painful; atropic, shiny; scaly or adherent to the underlying 
tissue.  There was no evidence of discoloration, 
hypo/hyperpigmentation, inflammation, edema or keloid formation.  
The examination indicated that the scar was not: disfiguring; 
productive of induration or inflexibility of the skin; or 
productive of any limitation of motion or function, but the 
report reflects that skin texture was not normal.  A diagnosis of 
scarring of the forehead with a retained metallic fragment was 
made and the examiner opined that this was more likely than not 
related to the complaints of the same condition documented during 
service.  

In a statement dated in March 2008, the Veteran indicated that 
the scar with retained material was productive of headaches and 
swelling.  In an August 2008 statement, the Veteran indicated 
that the forehead scar was tender to touch.  Service connection 
for headaches as well as scaring of the eye was denied in a March 
2009 rating decision. 

The file includes SSA records, which do not reflect that a 
forehead scar and related manifestations were in any a factor 
contributing or relating to the SSA disability determination and 
do not include any clinical findings relating to this condition.  

The Veteran presented testimony at a Board video conference 
hearing held in July 2010.  He indicated that when examined by VA 
in 2008, he told the examiner that the scar was painful and that 
he had retained foreign material in the forehead.  The Veteran 
indicated that the examiner touched the forehead area around the 
scarring.  He stated that he did not receive any treatment from 
this condition but often had headaches, which he believed were 
related to the forehead scar and scarring around the eyes.  He 
also mentioned having symptoms of swelling in the area of the 
scar and retained material.  

C.	 Forehead Scar - Analysis

The Veteran maintains that a compensable evaluation is warranted 
for a service-connected scar of the forehead which resulted from 
a head injury, contending that the condition is manifested by 
metal pieces in the forehead which are tender to touch.  The 
Veteran's claim for a higher evaluation for his forehead scar 
residuals was placed in appellate status by his disagreement with 
the initial rating award.  In such circumstances, separate 
ratings may be assigned for separate periods of time based on the 
facts found - a practice known as "staged" ratings, as will be 
further explained herein.  Fenderson v. West, 12 Vet. App. 119, 
126 (1999).

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  Separate diagnostic codes identify the various 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each 
disability must be viewed in relation to its history and there 
must be emphasis upon the limitation of activity imposed by the 
disabling condition.  38 C.F.R. § 4.1.  The Board attempts to 
determine the extent to which the Veteran's service-connected 
disability adversely affects his or her ability to function under 
the ordinary conditions of daily life, and the assigned rating is 
based, as far as practicable, upon the average impairment of 
earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 
C.F.R. §§ 4.1, 4.10.

Where there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the disability 
picture more nearly approximates the criteria required for that 
rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7 (2010).  When there is an approximate balance of positive 
and negative evidence regarding any issue material to the 
determination of a matter, the benefit of the doubt shall be 
given to the claimant.  38 U.S.C.A. § 5107(b).

In considering the severity of a disability, it is essential to 
trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 
4.41 (2010).  The degree of impairment resulting from a 
disability is a factual determination and generally the Board's 
primary focus in such cases is upon the current severity of the 
disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); 
Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in 
Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the 
rule from Francisco does not apply where, as here, the appellant 
has expressed dissatisfaction with the assignment of an initial 
rating following an award of service connection for a disability.  
Rather, at the time of an initial rating, separate ratings can be 
assigned for separate periods of time based on the facts found - 
a practice known as "staged" ratings.  More recently, the United 
States Court of Appeals for Veterans Claims (Court) held that 
"staged" ratings are appropriate for an increased rating claim 
when the factual findings show distinct time periods where the 
service- connected disability exhibits symptoms that would 
warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 
(2007).

The Veteran's forehead scar with retained material has been rated 
under 38 C.F.R. § 4.118, Diagnostic Code 7800 for the entirety of 
the appeal period extending from September 24, 2007.  The Board 
notes that regulations pertaining to the evaluation of scars were 
amended effective October 23, 2008.  The Board observes that the 
regulatory changes only apply to applications received by VA on 
or after October 23, 2008, or if the Veteran requests review 
under the clarified criteria.  See 73 Fed. Reg. 54708 (Sept. 23, 
2008).  As neither situation applies in this case, the Board 
finds the 2008 changes to be inapplicable.

Diagnostic Code 7800, effective from August 30, 2002, pertains to 
the evaluation of scars causing disfigurement of the head, face, 
or neck, including notes that provide the foundation for applying 
the new criteria.  Under that code, a 10 percent evaluation is 
warranted if there is one characteristic of disfigurement; a 30 
percent evaluation is assigned if there is visible or palpable 
tissue loss and either gross distortion or asymmetry of one 
feature or paired set of features [nose, chin, forehead, eyes 
(including eyelids), ears (auricles), cheeks, lips], or if there 
are two or three characteristics of disfigurement.  A 50 percent 
evaluation is warranted if there is visible or palpable tissue 
loss and either gross distortion or asymmetry of two features or 
paired sets of features [nose, chin, forehead, eyes (including 
eyelids), ears (auricles), cheeks, lips], or if there are four or 
five characteristics of disfigurement.  38 C.F.R. § 4.118, DC 
7800.

Note (1) accompanying 38 C.F.R. § 4.118, DC 7800 explains that 
the eight characteristics of disfigurement, for purposes of 
evaluation under 38 C.F.R. § 4.118, are the following: (1) Scar 
five or more inches (13 or more centimeters (cm.)) in length; (2) 
Scar at least one-quarter inch (0.6 cm.) wide at its widest part; 
(3) Surface contour of the scar is elevated or depressed on 
palpation; (4) Scar is adherent to underlying tissue; (5) Skin is 
hypo- or hyper-pigmented in an area exceeding six square inches 
(39 sq. cm.); (6) Skin texture is abnormal (irregular, atrophic, 
shiny, scaly, etc.) in an area exceeding six square inches (39 
sq. cm.); (7) Underlying soft tissue missing in an area exceeding 
six square inches (39 sq. cm.); (8) Skin indurated and inflexible 
in an area exceeding six square inches (39 sq. cm.).  Note (3) 
directs that unretouched color photographs should be taken into 
consideration when evaluating under these criteria.

Also potentially applicable in this case is Diagnostic Code 7804, 
the criteria under this code provide for a 10 percent evaluation 
for superficial scars that are painful on examination.  According 
to the notes associated with Diagnostic Code 7804, a superficial 
scar is one not associated with underlying soft tissue damage.  
38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1 (2008).

Upon application of the criteria provided under diagnostic code 
7800, not one of the eight characteristics of disfigurement is 
demonstrated in conjunction with the Veetran's scar.  Pertinent 
findings made upon VA examination of 2008 did not reflect that 
the scar was: 5 or more inches (13 or more cm.) in length; at 
least one-quarter inch (0.6 cm.) wide at its widest part; or had 
a surface contour that was elevated or depressed on palpation.  
Further, the scar was not found to be adherent to underlying 
tissue; or productive of: hypo-or hyperpigmented skin in an area 
exceeding six square inches (39 sq. cm.); abnormal skin texture 
(irregular, atrophic, shiny, scaly, etc.) in an area exceeding 
six square inches (39 sq. cm.); underlying soft tissue missing in 
an area exceeding six square inches (39 sq. cm.); or skin 
indurated inflexible in an area exceeding six square inches (39 
sq. cm.).  As none of the aforementioned characteristics of 
disfigurement were shown on examination, nor has the Veteran 
actually alleged that any one or more of these characteristics 
have manifested, the Board concludes that the fact that the 
record does not include unretouched photographs of the scar is 
non-prejudicial in this case.  Accordingly, the Veteran is not 
entitled to a compensable rating under DC 7800 (2008) for any 
portion of the appeal period.

However, the Board finds a basis for the assignment of an initial 
compensable rating of 10 percent under DC 7804.  In statements 
provided in 2008 as well as hearing testimony provided in 2010, 
the Veteran provided a credible account of pain and tenderness 
associated with his scar.  The 2008 examination report reflects 
that the forehead scar contained retained metallic 
fragment/subcutaneous material; albeit also reflecting that the 
scar was not painful at that time.  With any doubt as to this 
matter resolved in the Veteran's favor, code 7804 serves as a 
basis for an increased initial rating of 10 percent, but no 
higher, for a painful scar for the entirety of the appeal period.

The Board notes that that symptoms of headaches and scarring 
around the eyes which have been complained of by the Veteran are 
not part and parcel of the service-connected forehead scar, and 
are not contemplated in conjunction with the decision herein to 
grant an initial 10 percent evaluation for this condition.  
Moreover, the Board notes that service connection for headaches 
and scarring of the eyes was denied in a March 2009 rating action 
which was not appealed.  

The Board concludes that an initial rating of 10 percent for pain 
associated with forehead scar with retained material is warranted 
for the entirety of the appeal period extending from September 
24, 2007, and to this extent the appeal is granted.  See 
Fenderson v. West, 12 Vet. App. 119 (1999)

      Extraschedular Evaluation

The Board has considered whether the record raises the matter of 
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2010).  
In exceptional cases where schedular evaluations are found to be 
inadequate, consideration of an extraschedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or disabilities 
may be made.  The governing norm in an exceptional case is a 
finding that the case presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of the 
regular schedular standards.  38 C.F.R § 3.321(b)(1).

In a recent case, the United States Court of Appeals for Veterans 
Claims (Court) clarified the analytical steps necessary to 
determine whether referral for extraschedular consideration is 
warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, 
the RO or the Board must determine whether the evidence presents 
such an exceptional disability picture that the available 
schedular evaluations for that service-connected disability are 
inadequate.  Second, if the schedular evaluation does not 
contemplate the Veteran's level of disability and symptomatology 
and is found inadequate, the RO or Board must determine whether 
the claimant's exceptional disability picture exhibits other 
related factors such as those provided by the regulation as 
"governing norms."  Third, if the rating schedule is inadequate 
to evaluate a Veteran's disability picture and that picture has 
attendant thereto related factors such as marked interference 
with employment or frequent periods of hospitalization, then the 
case must be referred to the Under Secretary for Benefits or the 
Director of the Compensation and Pension Service to determine 
whether, to accord justice, the Veteran's disability picture 
requires the assignment of an extraschedular rating.

The Veteran's manifestations of his service-connected scar are 
contemplated by the rating criteria.  Here, the rating criteria 
reasonably describe the Veteran's disability level and 
symptomatology and provide for higher ratings for additional or 
more severe symptoms than currently shown by the evidence.  Thus, 
his disability pictures are contemplated by the rating schedule, 
and the assigned schedular evaluations are, therefore, adequate.  
Referral for consideration of extraschedular ratings is, 
therefore, not warranted.

The Court of Appeals for Veterans Claims (CAVC) has held that a 
request for a TDIU, whether expressly raised by a claimant or 
reasonably raised by the record, is an attempt to obtain an 
appropriate rating for disability or disabilities, and is part of 
a claim for increased compensation. There must be cogent evidence 
of unemployability in the record.  See Rice v. Shinseki, 22 Vet. 
App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 
2009).  In the instant case, the holding of Rice is inapplicable 
since the evidence of record does not demonstrate that the 
Veteran has been rendered unemployable due solely to his service-
connected scar, nor have the Veteran or his representative so 
alleged.  Thus, at this point, there is no cogent evidence of 
unemployability and entitlement to increased compensation based 
on TDIU is not warranted.

ORDER

Entitlement to service connection for bilateral hearing loss is 
denied.

Entitlement to service connection for tinnitus is denied.

An initial 10 percent rating for residuals of scar of the 
forehead with retained subcutaneous material is granted, subject 
to the law and regulations governing the award of monetary 
benefits.


REMAND

With respect to the service connection claims for respiratory and 
psychiatric disorders the Board finds that further development is 
required.

The Veteran maintains that he suffered from bronchial pneumonia 
during service that caused current residuals - claimed as 
frequent respiratory infections - f or which service connection 
is warranted.  

A brief review of the evidence reflects that in July and December 
1966 and January 1967, the Veteran was treated for upper 
respiratory infections (URI) in service.  An entry which appears 
to be dated in July 1967 indicates that the Veteran had been 
hospitalized 6 months previously for treatment of bronchial 
pneumonia.  Entries dated in May 1967 document complaints of 
chest congestion diagnosed as URI and bronchitis.  The separation 
examination report of September 1967 reflects that clinical 
examination of the lungs, chest and heart was normal and that 
chest X-ray films taken in September 1967 were negative.  The 
Veteran acknowledged having symptoms of frequent colds and 
chronic cough and denied having symptoms of asthma or shortness 
of breath.  The examiner indicated that the Veteran had been 
treated for bronchial pneumonia in 1965.  

A VA examination was conducted in January 2008 and the claims 
folder was reviewed.  The examiner noted that the Veteran was 
hospitalized for treatment of  double pneumonia and was also 
treated for URIs during service.  Pulmonary function testing was 
normal.  X-ray films of the chest revealed a 2 mm right basilar 
opacity, possibly representing a summation artifact or 
parenchymal nodule.  Additional studies revealed the presence of 
a small linear opacity, suggestive of small basilar granuloma.  
Diagnoses of pneumonia in remission, and URI were made.  The 
examiner indicated that clinically, the Veteran did not have any 
residuals from the diagnosis of pneumonia in service.  

The Board believes that additional development is warranted prior 
to adjudication of the service connection claim for a respiratory 
disorder.  In this regard, the 2008 VA examiner provided no 
explanation or supporting rationale for the opinion provided.  
The Board observes that this was especially critical, inasmuch as 
one of the diagnosed conditions, URI, has been specifically 
maintained by the Veteran as chronic manifestation of the 
pneumonia for which he was treated during service.  Moreover, the 
opinion failed to discuss or acknowledge the Veteran's lay 
statements relating to the nature, history and reported 
chronicity of his respiratory problems since service.  In 
addition, the significance of the X-ray findings of a small 
basilar granuloma were not addressed in terms of etiology and 
disability associated therewith.

The United States Court of Appeals for Veterans Claims (Court) 
has held that 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); Stefl v. Nicolson, 21 Vet. App. 
120, 124 (2007) ("[A]medical opinion . . . must support its 
conclusion with an analysis that the Board can consider and weigh 
against contrary opinions.").  In light of the information 
provided above, a request for supplemental medical opinion (which 
could include the conduct of a full examination, if required) is 
warranted in this case.  See Charles v. Principi, 16 Vet. App. 
370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2010) (a medical 
examination or opinion is necessary if the information and 
evidence of record does not contain sufficient competent medical 
evidence to decide the claim).

In addition, during the course of a travel board hearing held in 
July 2010, the Veteran indicated that X-ray films of the lungs 
were taken in June 2010 or would be taken in July 2010 at the VA 
facility in Port Richey, FL.  However, no X-ray films or records 
relating to that visit are on file.  Records generated by VA 
facilities that may have an impact on the adjudication of a claim 
are considered to be constructively in the possession of VA 
adjudicators during the consideration of a claim, regardless of 
whether those records are physically on file.  See Dunn v. West, 
11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 
611, 613 (1992).  As such, VA must obtain outstanding VA records, 
as have been identified in this case.  See 38 U.S.C.A. § 5103A 
(b-c); 38 C.F.R. § 3.159(c).  


The Veteran has also claimed service connection for a psychiatric 
disorder, maintaining that this resulted from returning home in 
uniform and facing protestors, who degraded and spat on him.  The 
file contains a July 2010 VA psychiatric record reflecting that 
assessments of depressive disorder and PTSD, secondary to 
physical and emotional abuse in the military were made.  The 
entry indicated that the Veteran reported being harassed during 
military service due to incidents including: (1) being ordered to 
do push-ups in the middle of the night; (2) being placed in a box 
and beaten with a stick; and (3) being hit in the head with a 
rifle butt.  

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held 
that the scope of a service connection for a mental health 
disability claim includes any mental disorder that may be 
reasonably encompassed by the claimant's description of the 
claim, reported symptoms, and other information of record.  As 
such, service connection claims for both PTSD and a psychiatric 
disorder are both viable in light of current diagnoses of these 
conditions.  However, additional development of these matters is 
required in this case.  

To the extent that the Veteran's claim for a psychiatric 
condition includes PTSD as a possible component, he has given an 
account of service-related stressors related to personal assault.  
Establishing service connection for PTSD requires that there be 
(1) medical evidence diagnosing the condition in accordance with 
38 C.F.R. § 4.125(a); (2) a link, established by medical 
evidence, between current symptoms and an in-service stressor; 
(3) and credible supporting evidence that the claimed in-service 
stressor actually occurred.  38 C.F.R. § 3.304(f) (2010); see 
also Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  The diagnosis 
of a mental disorder must conform to the Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) 
and be supported by the findings of a medical examiner.  See 
38 C.F.R. § 4.125(a) (2010).

Under 38 C.F.R. § 3.304(f)(3), if a PTSD claim is based on 
inservice personal assault, evidence from sources other than the 
veteran's service records may corroborate the veteran's 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.  Evidence of behavior changes 
following the claimed assault is one type of relevant evidence 
that may be found in these sources.  VA will not deny a PTSD 
claim that is based on in-service personal assault without first 
advising the claimant that evidence from sources other than the 
veteran's service records or evidence of behavior changes may 
constitute credible supporting evidence of the stressor and 
allowing him or her the opportunity to furnish this type of 
evidence or advise VA of potential sources of such evidence.  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.  38 C.F.R. 
§ 3.304(f)(3).

On July 13, 2010, VA published a final rule that amended its 
adjudication regulations governing service connection for PTSD by 
liberalizing, in certain circumstances, the evidentiary standard 
for establishing the required in-service stressor.  75 Fed. Reg. 
39843 (July 13, 2010); see also 75 Fed. Reg. 41092 (July 15, 
2010)(correcting effective and applicability dates).  The final 
rule amended 38 C.F.R. § 3.304(f), by redesignating current 
paragraph (f)(3) and (f)(4) and (f)(5), respectively, and by 
adding a new paragraph (f)(3) which apply to stressors claimed as 
related to a Veteran's fear of hostile military or terrorist 
activity; stressors not alleged in this case.  While effective on 
July 13, 2010, this final rule applies to any application for 
service connection for PTSD that was appealed to the Board before 
July 12, 2010 but not decided by the Board as of that date.  
However, VA has indicated that these regulatory changes do not 
apply in cases where service connection for PTSD is sought as due 
to personal assault.  See VBA Training Letter 10-05.

In the case of a claim for service connection for PTSD based on 
in-service personal assault VA has a special obligation to assist 
a Veteran in producing corroborating evidence of an in-service 
stressor.  Gallegos v. Peak, 22 Vet. App. 329, 335 (2008) (citing 
Patton v. West, 12 Vet. App. 272, 280 (1999)).  In accordance 
with this special obligation, 38 C.F.R. § 3.304(f)(5) places a 
heightened burden of notification on VA in claims for service 
connection for PTSD based on in-service personal assault.  VA 
must inform the Veteran that he may submit alternative forms of 
evidence, other than service records, to corroborate his account 
of an in-service assault, and suggest potential sources for such 
evidence.  38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson, 20 
Vet. App. 200, 206 (2006); Patton, 12 Vet. App. at 281-82 (noting 
that the RO must send the claimant a "special PTSD personal-
assault letter" and questionnaire to assist VA in identifying 
alternative sources of evidence to establish an in- service 
stressor (citing M21- 1, pt. III, para. 5.14(c)(6)-(7))).  The 
Veteran should also be notified that, alternatively, evidence of 
behavioral changes following the alleged in-service assault may 
constitute credible supporting evidence of the stressor.  38 
C.F.R. § 3.304(f); see Bradford, 20 Vet. App. at 206.  As such a 
Remand is required to comply with the special claims development 
procedures.

In addition, there has been no psychiatric examination furnished 
in this case to this point.  In determining whether a medical 
examination be provided or medical opinion obtained, there are 
four factors to consider: (1) competent evidence of a current 
disability or persistent or recurrent symptoms of a disability; 
(2) evidence establishing an in-service event, injury, or 
disease, or manifestations during the presumptive period; (3) an 
indication that the disability or symptoms may be associated with 
service; and (4) whether there otherwise is sufficient competent 
medical evidence of record to make a decision on the claim.  
McLendon v. Nicholson, 20 Vet. App. 79 (2006).  With respect to 
the third factor, the types of evidence that "indicate" that a 
current disorder "may be associated" with service include, but 
are not limited to, medical evidence that suggests a nexus but is 
too equivocal or lacking in specificity to support a decision on 
the merits, or credible evidence of continuity of symptomatology 
such as pain or other symptoms capable of lay observation.  Id.  
In light of the evidence currently on file, the AMC/RO should 
arrange for the Veteran to undergo a psychiatric examination to 
assist in substantiating the service connection claim for a 
psychiatric disorder to include PTSD.  In addition, the Veteran 
will be given an opportunity to provide any additional 
information or evidence relating this claim on Remand.

Accordingly, the case is REMANDED for the following action:


1.  The Veteran shall be afforded an 
opportunity to submit or identify any 
additional evidence relevant to his service 
connection claims for respiratory and 
psychiatric disorders.

2.  Send the Veteran another VCAA notice 
letter advising him that establishment of 
service connection for PTSD requires: (1) 
medical evidence diagnosing PTSD in 
accordance with VA regulations; (2) 
credible supporting evidence that the 
claimed in-service stressor actually 
occurred; and (3) medical evidence of a 
link between current symptomatology and the 
claimed in-service stressor.  38 C.F.R. § 
3.304(f)(5). See also Cohen v. Brown, 10 
Vet. App. 128 (1997).  The letter shall 
also include notice relating to the 
establishment of service connection for his 
claimed respiratory and psychiatric 
disorders.  

In addition, this letter shall be compliant 
with 38 C.F.R. § 3.304(f)(5), as required 
for PTSD claims based on in-service 
personal assault or harassment.  See also 
Gallegos v. Peake, 22 Vet. App. 329, 336-37 
(2008); Bradford v. Nicholson, 20 Vet. App. 
200 (2006).  In particular, this notice 
must advise the Veteran that he may submit 
alternative forms of evidence to 
corroborate his account of an in-service 
assault and that behavioral changes may 
constitute credible supporting evidence of 
the stressor.  Please also attach a VA Form 
21-0781a, Statement in Support of Claim for 
PTSD Secondary to Personal Assault.  Allow 
the Veteran additional time to submit such 
evidence after receipt of the VCAA letter.

3.  Obtain the Veteran's records treatment 
records relating to his respiratory and 
psychiatric conditions from the Port 
Richey, FL VA facility, dated from February 
2009 forward, to specifically include 
reports of any X-ray studies conducted 
during that time (the Veteran indicated 
that X-ray films of the lungs were taken in 
June or July 2010).  Document efforts made 
to obtain these records.  If no records can 
be found, indicate for the record whether 
the records do not exist and whether 
further efforts to obtain the records would 
be futile.

4.  The RO/AMC shall arrange for a review 
of the file by a specialist in respiratory 
disorders, if possible, or other qualified 
professional to provide an opinion for the 
file, to include consideration of the 
service treatment records, the January 
2008, the medical history provided by the 
Veteran, and his July 2010 hearing 
testimony.  Copies of all pertinent records 
in the Veteran's claims file, or in the 
alternative, the claims file, shall be made 
available to the examiner for review in 
connection with the examination.

The examiner shall offer an opinion as to 
the onset, and etiology of claimed 
respiratory disorder (claimed as recurrent 
infections related to treatment for 
pneumonia in service).  Specifically, the 
examiner shall identify and diagnose any 
currently manifested respiratory disorder, 
to include identifying any recurrent 
respiratory condition (which may or may not 
be present at the time of the examination), 
and providing an explanation as to whether 
findings shown upon chest X-ray films of 
2008 are indicative of any respiratory 
disability.  

The examiner shall opine whether it is at 
least as likely as not (a 50 percent 
probability or more) that an currently 
manifested respiratory disorder is causally 
or etiologically related the Veteran's 
period of service from November 1965 to 
November 1967, to include treatment for 
pneumonia therein.  A clear rationale for 
all opinions is required, to include a 
discussion of the facts and medical 
principles involved.

Should the examiner find it advisable to 
conduct a full examination, it is within 
the medical professional's discretion to 
schedule such.  Should any additional 
clarifying historical information need be 
obtained from that Veteran, it is also at 
the discretion of the examiner and/or 
RO/AMC to request such information.

5.  The RO shall arrange for a psychiatric 
examination of the Veteran.  The claims 
file must be reviewed by the examiner in 
conjunction with the examination.  Based on 
review of the record and examination of the 
Veteran, the examiner must provide opinions 
that respond to the following:

a) Identify, by psychiatric diagnosis, each 
and every chronic psychiatric disability 
entity found and describe the 
manifestations of each diagnosed disorder.

b) Review the Veteran's claims file and 
identify any signs/indicators of change of 
behavior or performance subsequent to the 
alleged personal assault in service that 
are corroborative that such event occurred.

c) If the psychiatric diagnoses found 
include PTSD, identify the stressor event 
on which such is based.  If the diagnoses 
do not include PTSD, please explain why the 
criteria for such diagnosis are not met.

d) If an acquired psychiatric disability 
other than PTSD is diagnosed, the examiner 
should opine (as to each diagnosis) whether 
it is at least as likely as not (i.e., 50 
percent or greater probability) that such 
originated during active service or the 
first post-service year, or is otherwise 
etiologically related to the Veteran's 
period active service extending from 
November 1965 to November 1967. 

The examiner must explain the rationale for 
all opinions.

6.  The RO/AMC shall then review the 
Veteran's claims file and ensure that the 
foregoing development actions have been 
conducted and completed in full, and that 
no other notification or development 
action, in addition to those directed 
above, is required.  If further action is 
required, it should be undertaken prior to 
further claim adjudication.

7.  Following the directed development, the 
RO must readjudicate the service connection 
claims for a respiratory disorder and for a 
psychiatric disorder, to include PTSD, to 
include consideration of all pertinent 
evidence added to the record since the 
issuance of the August 2008 SOC.  If either 
or both of the claims remain denied, the RO 
shall issue the Veteran and his 
representative a Supplemental Statement of 
the Case.  Thereafter, the case should be 
returned to the Board, if in order, for 
appellate consideration.

The appellant 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.A. 
§§ 5109B, 7112 (West Supp. 2009).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs