Citation Nr: 1005045 Decision Date: 02/03/10 Archive Date: 02/18/10 DOCKET NO. 08-10 053 ) 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 bilateral tinnitus. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with sleep apnea (claimed as breathing problems, acute respiratory disease, and chest pain.) 4. Entitlement to service connection for frostbite residuals affecting the Veteran's right ear. 5. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: John S. Berry, Esquire ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1956, and August 1957 to September 1974. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. The Board notes several issues in need of referral to the RO. In a June 2006 letter, the Veteran submitted a claim for entitlement to dependency allowance. In a January 2008 VA Form 21-4138 the Veteran sought service connection for Type II diabetes. These issues are referred to the RO for all appropriate action. Also, the Board notes that the appeal at bar originally included claims for service connection for diverticular disease and a skin disorder. In a December 2008 rating decision, these claims were granted. As such, they are no longer on appeal. Additionally, the Board notes that an October 2008 rating decision increased the Veteran's rating for PTSD. In November 2008, the Veteran expressed his disagreement with the rating assigned by the October 2008 decision. A statement of the case must be issued on this claim. Manlincon v. West, 12 Vet. App. 238 (1998). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that during the pendency of this appeal the Court issued Dingess v. Nicholson, 19 Vet. App. 473 (2006), which requires that notice be provided concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006). Complaint notice is required in this regard. Additionally, a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his disability. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the claims file reveals a current diagnosis for each of the conditions on appeal. Bilateral hearing loss and tinnitus was documented in a VA examination of February 2006. The Veteran's COPD and obstructive sleep apnea diagnoses were documented in private medical records of July 2003 and January 2005, respectively. The frostbite residuals affecting the Veteran's right ear were documented on VA examination in February 2006. As for the in-service incurrence of these conditions, the Board notes that the Veteran has contended that his hearing loss and tinnitus, at least, were incurred as the result of noise exposure during combat. For injuries alleged to have been incurred in combat, the provisions of 38 U.S.C.A. § 1154(b) provide a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran here is entitled to this relaxed evidentiary standard of proof due to his receipt of the Combat Infantryman Badge. Moreover, a review of his service treatment records reveals support for the in-service incurrence of his current conditions. Hearing loss was documented in April 1965 and October 1967. Frostbite residuals were documented in January 1966, October 1967, March 1969, and April 1972. Breathing problems and chest pain were documented in November 1970 and December 1971. In February 1973 the Veteran was diagnosed with an acute respiratory disease. Additionally, a July 2007 lay statement of the Veteran's wife is supportive of the in- service incurrence of the Veteran's conditions. While the Veteran was afforded VA examinations for his hearing loss, tinnitus, and frostbite residuals in February 2006, the hearing loss examiner indicated that he could not provide an opinion as to hearing loss and tinnitus. The hearing loss/tinnitus examiner stated that his inability to provide an opinion was due to the lack of detailed information at the time of entrance into service and at the time of separation. The Board notes, however, that the Veteran's hearing is presumed to have been sound on entrance into service as no hearing defect was noted on entrance examination. The Board also notes the examiner did not discuss service examinations performed in April 1965 and October 1968 which reflect that presence of elevated levels of hearing loss. In addition, although the VA February 2006 frostbite examiner had access to the Veteran's claims file, he did not mention service medical records pertaining to frostbite. On the contrary, although the first page of the report indicates that the claims file was available, the examiner later noted the history given by the Veteran of treatment for frostbite in service but stated in the report that "I do not have the C-file to support that." Also, no VA examination has been afforded to the Veteran for his COPD, even though a June 2006 private physician's statement provides some link between the Veteran's sleep apnea and service. Examinations for each of the Veteran's claims are necessary in order to properly adjudicate the appeal. Finally, the Board notes that an October 2008 rating decision increased the Veteran's rating for PTSD. In November 2008, the Veteran expressed his disagreement with the rating assigned by the October 2008 decision. Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper notice of the information or evidence needed to establish a disability rating and/or effective date for the claims on appeal pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Afford the Veteran VA examinations with any necessary specialists to ascertain the nature and etiology of the following conditions: a. bilateral hearing loss b. bilateral tinnitus c. COPD with sleep apnea (claimed as breathing problems, acute respiratory disease, and chest pain) d. frostbite residuals involving the Veteran's right ear Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly service treatment records, and offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's currently diagnosed conditions had their onset during service or are in any other way causally related to his active service, including to his conceded combat exposure. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2009). 3. The RO should issue an SOC with respect to the issue of entitlement to an increased rating PTSD. The appellant should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of those issues. The claims file should be returned to the Board for further appellate consideration only if the appellant files a timely substantive appeal. After all of the above actions have been completed, a corrective notice and assistance letter has been issued, and the Veteran has been given adequate time to respond, readjudicate his claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 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 2002 & Supp. 2009). _________________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).