Citation Nr: 1134701 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-18 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for sterility. 5. Entitlement to service connection for a gastrointestinal disorder. 6. Entitlement to service connection for hypertension. 7. Entitlement to an initial evaluation in excess of 30 percent for the posttraumatic stress disorder (PTSD) disability prior to May 29, 2007. 8. Entitlement to an evaluation in excess of 50 percent for the posttraumatic stress disorder (PTSD) disability from May 29, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United Marine Corps from February 1964 to February 1968, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. The case was certified to the Board by the RO in San Diego, California. In March 2011, a videoconference hearing was held between the San Diego RO and the Board in Washington, DC before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In connection with that hearing, the appellant submitted evidence directly to the Board. This evidence consisted of a VA Form 5571, third party statements, a psychiatric opinion, a statement from a social worker and a copy of the report from the VA psychological examination of the appellant conducted in October 2010. The appellant also submitted a VA Form 21-4138 in which he expressly waived RO consideration of these documents. A prior written waiver, also dated in March 2011, waives consideration of another third party statement. As such, there exists a written waiver of RO consideration of these particular pieces of additional evidence. See 38 C.F.R. §§ 19.37, 20.1304. While the case was in appellate status, the appellant's initial disability evaluation for his posttraumatic stress disorder (PTSD) disability was increased from 30 percent to 50 percent, effective from May 29, 2007; this created a tiered rating for the PTSD. However, it is presumed that the appellant was seeking the maximum benefit allowed by law and regulation for that disability, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). Because neither of the two assigned evaluations at issue represents the maximum rating available for the PTSD disability, the appellant's increased rating claims have remained in appellate status. Therefore, the issues on appeal are as listed on the first page, above. The appellant is appealing the initial rating that was assigned to the PTSD disability after service connection was granted. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. The Board notes that the issue of entitlement to a total schedular rating based on individual unemployability (TDIU) was not certified to the Board by the RO. In fact, TDIU was denied in a rating decision issued in December 2010, and the appeal period for that denial has not yet run out. However, the issue of whether entitlement to TDIU is warranted as a result of the PTSD disability is part and parcel of the appellant's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As explained in the decision below, the Veteran is entitled to a 100 percent schedular evaluation for his PTSD disability beginning May 29, 2007. Although it is not categorically true that assignment of a total schedular rating renders a TDIU claim moot, see Bradley v. Peake, 22 Vet. App. 280 (2008), given that the TDIU claim in this case was essentially raised only in the context of the PTSD claim (as the Veteran is not currently service-connected for any other disability), the Board finds that the assignment of a total schedular evaluation for the PTSD disability does render the TDIU aspect of the PTSD increased rating claim moot for the period beginning May 29, 2007. The initial evaluation for the period prior to May 29, 2007 is addressed in the REMAND section below. The Board notes that the last Supplemental Statement of the Case (styled as a Statement of the Case) was issued in May 2010. Thereafter, in August 2010, records were submitted to the RO by the Social Security Administration, including records contained on a computer disc. These records were apparently not considered by the RO in connection with any of the claims on appeal and the appellant has not submitted a waiver pursuant to 38 C.F.R. § 20.1304. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). However, a 100 percent evaluation for the PTSD disability beginning May 29, 2007 is granted herein and all other remaining claims have been remanded to the RO. Therefore, a remand to have the RO initially consider this evidence in connection with the increased rating claim for the period beginning May 29, 2007 is unnecessary and the case is ready for appellate review. The issue of entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, has been raised by the record, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial evaluation in excess of 30 percent for the PTSD disability prior to May 29, 2007, and the issues of entitlement to service connection for bilateral hearing loss, tinnitus, a gastrointestinal disorder and hypertension are addressed in the REMAND portion of the decision below and all of those issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a written statement dated March 8, 2011, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to two issues: entitlement to service connection for diabetes mellitus and entitlement to service connection for sterility. 2. Resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture associated with his service-connected PTSD more closely approximated total occupational and social impairment such that a 100 percent schedular rating under Diagnostic Code 9411 was warranted beginning May 29, 2007. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of his Substantive Appeal on the two issues of entitlement service connection for diabetes mellitus and entitlement to service connection for sterility have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a maximum 100 percent rating for the PTSD disability have been met as of May 27, 2007. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.126, 4.130 (Diagnostic Code 9411) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). The Veteran filed a substantive appeal (VA Form 9) in June 2007 with respect to his claims of entitlement to service connection for diabetes mellitus and sterility. On March 8, 2011, the Veteran was afforded a Board videoconference hearing. A transcript of the hearing testimony has been associated with the claims file. The transcript of the hearing shows that the appellant withdrew his appeal for his claim of entitlement to service connection for diabetes mellitus. That oral statement, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). Likewise, the transcript of the hearing shows that the appellant withdrew his appeal for his claim of entitlement to service connection for sterility. Therefore, the appeal as to the diabetes mellitus and sterility service connection claims has been withdrawn. See 38 C.F.R. § 20.204. As the Veteran has withdrawn his appeal as to these two issues on appeal, there remain no allegations of error of fact or law for appellate consideration on those two claims. Accordingly, the Board does not have jurisdiction to review the appeal as to the appellant's claims for service connection for diabetes mellitus and sterility. Therefore, each one of these two issues is dismissed, without prejudice. II. PTSD increased rating beginning May 29, 2007 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefits sought on appeal (a 100 percent evaluation for the period beginning May 29, 2007). Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Where there is a question as to which of two disability 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. As exemplified by the March 2011 testimony, the appellant contends that his PTSD disability is of greater severity than is contemplated by the currently assigned rating. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, will be rated as 100 percent disabling. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). According to the DSM-IV, a GAF score between 21 and 30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.); a GAF score between 31 and 40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work); a GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job); and a GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers) The evidence of record indicates that the appellant's PTSD signs and symptoms have remained quite constant since May 2007, in that the findings in the psychiatric examinations are mirrored in the private medical treatment records and in the SSA records. For example, a letter from the appellant's primary care physician, dated May 29, 2007, states that the appellant was currently unable to work because of deteriorated concentration, an inability to complete tasks, a gross impairment in communication skills and thought processes and volatile responses to frustration. The appellant was noted to have occasional thoughts of suicide. The physician noted that the appellant was feeling more depressed and angrier towards his work environment and coworkers. The doctor further stated that the appellant was experiencing intermittent panic attacks and anxiety attacks. She stated that the appellant had missed repeated days of work and that he was not able to perform his activities of daily living as well as should be expected. A June 2007 psychiatric evaluation submitted by the appellant's representative states that the appellant was extremely impaired with regard to his ability to work. The psychiatrist stated that he had been treating the appellant for 13 months and that the appellant's PTSD impaired him in the vast majority of jobs in that he could not deal with stress or pressure from others. A third party statement was submitted by the appellant's niece; she is also a licensed clinical social worker. The letter was received by the RO in June 2007, and states that the appellant had always been a distant and emotionally detached person. She described him as a loner with no friends who used criticism, hostility and intimidation to keep others at a distance. She reiterated her observations in a September 2009 statement and indicated that the Veteran had declined to near total impairment. The appellant underwent a VA psychological examination in October 2007; the examining psychologist reviewed the claims file. The appellant's symptoms included suicidal thoughts at times, trouble controlling his anger, depression, fearfulness, dysphoria, sleep impairment, panic attacks and mildly impaired memory. The examiner rendered an Axis I diagnosis of PTSD. The examiner assigned a past year GAF score of 61. The examiner stated that the appellant's symptoms had affected every aspect of the appellant's life, including his social and work capacities. The examiner said that the appellant's PTSD symptoms would persist and possibly worsen. A review of the appellant's private outpatient mental health treatment records indicates that the appellant's psychiatrist recorded symptoms that included poor grooming, an unkempt appearance, impaired concentration, impaired judgment, depressed mood, anergia, anhedonia, constriction of interests, isolation and sleep pattern disturbance due to nightmares. This psychiatrist assigned GAF scores that ranged between 30 and 40 for the period from July 2007 to July 2009. The treatment notes reflect an Axis I diagnosis of PTSD with depression, concentration impairment, isolation, sleep pattern disturbance due to nightmares, severe interpersonal relationship problems and unemployability. A May 2010 private licensed clinical social worker report indicated an initial therapy session in December 2008, and an Axis I diagnosis of PTSD, along with one of major depression. On Axis V, the social worker assigned a current GAF score of 40 and a past year GAF score of 40. Review of the appellant's VA mental health treatment records reflects an Axis I diagnosis of PTSD, as well as history of major depressive disorder and history of polysubstance abuse. Between September 2008 and June 2009, the appellant's treatment records reflect a GAF score of 60 being assigned on a few occasions. The evidence of record contains a copy of the October 2009 SSA decision issued by an administrative law judge (ALJ) who granted disability benefits to the appellant and found him to be disabled as of May 31, 2007. The primary diagnosis related to this determination was the appellant's PTSD. A mental assessment report filled out for SSA by the appellant's treating psychiatrist in July 2009 indicates that the appellant was markedly impaired in most categories, including social interaction, the capacity for sustained concentration and persistence and the capacity for adaptation. A letter from that psychiatrist, dated in July 2009, stated that the appellant was unable to maintain employment due to his numerous PTSD symptoms. The appellant most recently underwent a VA psychological examination in October 2010; the psychologist reviewed the appellant's medical records. The appellant was noted to experience panic attacks three to four times per week; anger; problems falling asleep; a history of suicidal ideation; a history of violent behavior; frequent road rage; having no friends; and not wanting to leave the house for days at a time. On mental status examination, the appellant denied homicidal ideation. He had no delusions and his thought content was free of bizarre or psychotic content. He did not appear to be responding to internal stimuli. His insight and judgment appeared to be intact. The appellant had moderate memory impairment. The examiner rendered Axis I diagnoses of PTSD, major depressive disorder secondary to PTSD and alcohol abuse secondary to PTSD. The examiner assigned a current GAF score of 45 on Axis V and stated that the appellant's prognosis was guarded. The examiner stated that the appellant had frequent difficulty performing activities of daily living and that he was not able to establish or maintain effective work or social relationships. The examiner also stated that the appellant had mild to moderate difficulty in understanding and completing complex commands. The evidence of record contains a private psychiatric report that was submitted in March 2011. The psychiatrist from Windstone Behavioral Health stated that, despite both psychotherapy and medication management, the appellant continued to complain of frequently depressed mood, continuous anhedonia, lack of energy, irritability, social isolation, frequent nightmares of war, occasional flashbacks and an easy startle reflex. The psychiatrist further stated that the appellant was unable to work currently and that he would not be able to work in the future. According to the medical evidence, the appellant has exhibited deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, as well as impaired impulse control, difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. He has also exhibited suicidal ideation, severe social impairment and memory impairment and an intermittent ability to perform activities of daily living. Numerous opinions clearly indicate that the Veteran is unable to work due to his PTSD. Importantly, the GAF scores primarily assigned during this period ranged from 30 to 40, which are indicative of major impairment. The evidence reported above reflects that, since at least May 29, 2007, the appellant has exhibited some PTSD symptoms that are enumerated among the criteria of both the 70 percent and 100 percent ratings. It is unclear, however, whether the Veteran's symptoms are attributable to PTSD, or to various other causes. Nevertheless, significantly, the October 2010 VA examiner attributed the Veteran's separate depressive disorder to his PTSD. While further medical inquiry could be conducted with a view towards resolution of this question, it is doubtful that such research would assist the Board in its inquiry. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Observing that when it is not possible to separate the effects of a service-connected condition and a non-service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the veteran's favor, and that all signs and symptoms be attributed to the service-connected condition). Affording the Veteran the benefit of the doubt on the question of the severity of the disability under consideration, the Board finds that the criteria for a 100 percent rating for PTSD have been met since May 29, 2007. Therefore, entitlement to a 100 percent disability rating for PTSD is granted, effective. ORDER The appeal as to the Veteran's claims of entitlement to service connection for diabetes mellitus and entitlement to service connection for sterility is dismissed. Entitlement to a 100 percent disability rating for PTSD is granted beginning May 29, 2007, subject to the law and regulations governing the payment of monetary benefits REMAND A determination has been made that additional development is necessary with respect to the remaining issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. The appellant is seeking service connection for bilateral hearing loss and for tinnitus. He has indicated that he was exposed to military noise during his four years in the Marine Corps. According to his DD Form 214, the appellant was assigned to an artillery unit and served in Vietnam as a forward radar operator for a little more than one year. He has provided written statements and testimony to the effect that he experienced tinnitus and hearing loss during service; a third party statement to that effect is also of record. It is well established that, although laypersons are not considered capable of opining on matters requiring medical knowledge, they are permitted to provide personal observations. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supa. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, for example, the appellant is competent to describe his difficulties with hearing loss and tinnitus. The Board notes that the appellant was issued hearing aids by a VA facility in January 2009. In May 2005, the appellant was afforded a VA audiometric examination. The examiner noted the appellant's description of his ringing in the ears but did not render any opinion regarding the existence of any tinnitus or whether any such tinnitus is related to service. In addition, the examiner noted that the appellant was difficult to evaluate and recommended that the appellant be seen for brainstem audiometry in order to obtain a more conclusive hearing test. However, authorization for that testing was denied. Therefore, there are no current audiometric results of record for the appellant and it is unknown if his hearing loss meets the standards of 38 C.F.R. § 3.385. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why an adequate examination will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). "Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). In Barr, 21 Vet. App. at 311, the Court found that a medical examination was inadequate because the examiner did not provide an etiological opinion and did not review prior medical records. It is incumbent upon the adjudicator to return an examination report as inadequate if it does not contain sufficient detail. 38 C.F.R. § 4.2. In this case, the appellant must be afforded appropriate audiometric testing on remand. The evidence of record does not contain any VA treatment records dated after approximately June 2009. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered 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). Furthermore, the appellant, in his September 2005 NOD, reported treatment for hypertension from private providers in 1970 and 1971. He also reported treatment for a stomach and/or esophagus condition in North Carolina in 1998, and later in Los Alamitos, California (in 2002 and 2003). It does not appear that any attempt was made to obtain the associated records. On remand, the AMC/RO should obtain all of the relevant private and/or VA treatment records not already of record and associate said records with the claims file. See Robinette v. Brown, 8 Vet. App. 69 (1995). The appellant is service connected for PTSD, effective from October 2004. There is medical evidence of record to indicate that his service-connected PTSD disability is a contributing factor to his current gastrointestinal complaints and his current hypertension. For example, an August 2005 written statement from the appellant's treating primary care physician states that the appellant self-medicated with alcohol for his PTSD symptomatology which led to gastritis and esophagitis. The physician also indicated that there was a causal relationship between the appellant's PTSD and his current hypertension. The Board notes that the appellant was not afforded any medical examination or medical opinion in connection with these two claims. On remand, such an opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of these claims and appeal, an amendment was made to that regulation. 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case predates the regulatory change. Given what appear to be substantive changes, the analysis of secondary service connection in the present appeal considers the version of 38 C.F.R. § 3.310 in effect before the change, which version is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. The RO has never addressed the question of whether the appellant's gastrointestinal or cardiac pathology is etiologically related to the service-connected PTSD disability. In addition, the RO has not analyzed the appellant's gastrointestinal disease and heart disease service connection claims with consideration of a theory of secondary service connection by way of aggravation vis-à-vis the PTSD disability. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim). On remand, the AMC/RO is to consider the applicability of the Allen decision to the question of whether the appellant's current gastrointestinal and cardiac pathology is etiologically related to his service-connected PTSD disability. The RO must also consider the question of whether the appellant's service-connected PTSD disability has aggravated any gastrointestinal or cardiac pathology. Further development of the medical evidence and adjudication on these bases are therefore indicated. On remand, these deficiencies must be rectified; the AMC/RO should obtain a medical opinion on these questions. The duty to assist also requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO was in receipt of the appellant's Social Security Administration (SSA) records prior to the transfer of the claims file to the Board. Review of that SSA evidence reveals the existence of records that are pertinent to this claim. Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal. In this case, the SSA records were newly obtained by the RO and were never addressed in the SOC or in any SSOC. An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. In this case, no such SSOC was issued after the appellant's SSA records were obtained and it is unclear from the record whether they were ever reviewed in conjunction with the initial PTSD rating claim. The Board therefore finds that the procedural flaws in the handling of the appellant's PTSD initial rating claim have resulted in the potential of prejudice to the appellant which forestalls proceeding with the issuance of a final decision. The appellant must be provided with a proper SSOC while the appeal is in remand status. 38 C.F.R. § 19.31; Bernard v. Brown, 4 Vet. App. 384 (1993). Finally, because it is VA's policy to grant a TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations, 38 C.F.R. § 4.16(b), the RO/AMC should consider whether the appellant's case should be sent to VA's Director of Compensation and Pension for extraschedular adjudication for the PTSD disability for the period prior to May 29, 2007. 38 C.F.R. § 3.321(b)(1) (2010); Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, to ensure full compliance with due process requirements and the development of all potentially relevant evidence as to all issues on appeal, this case is REMANDED to the AMC/RO for the following: 1. Ensure that all notification and development action required by 38 U.S.C. A. § § 5102, 5103, and 5103A (West 2002 & Supp. 2010), the implementing regulations found at 38 C.F.R. § 3.159 (2010) and any other applicable legal precedent has been completed. 2. Contact the Veteran to obtain the names and addresses of all VA, private, or other government health care providers and treatment centers where he has been treated for his hearing loss, tinnitus, gastrointestinal complaints and hypertension since 1968. In particular, the records from the Baldwin Hills Hospital/Dr. Goodman; the Cone Hospital/Greensboro Gastroenterology Group in Greensboro, North Carolina; and the Los Alamitos Medical Center/Gastroenterology Consultants Medical Group in California should be obtained. Also ask the appellant to identify the names and addresses of all mental health care providers (VA, private or other government) who treated him between October 2004 and May 2007. After securing the necessary release(s), obtain those records that have not been previously secured. Specifically, VA treatment records from June 2009 to the present must be associated with the claims file. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file should contain documentation of the attempts made. The appellant should also be informed of the negative results and be given opportunity to secure the records. 4. After completing all of the above development action, the AMC/RO should arrange for an examination of the appellant by an audiologist in order to determine the nature, onset date and etiology of the appellant's claimed right and left hearing loss, as well as the tinnitus. The claims file must be made reviewed in connection with the examination. The examiner should consider the information in the claims file and the results of the audiometric testing to provide an opinion as to the onset date and etiology of the appellant's claimed hearing loss and tinnitus. The examiner should offer an opinion as to the medical probabilities that any current hearing loss or tinnitus is attributable to the appellant's military service. The examiner should respond to the following specific questions and provide a full statement of the basis for the conclusions reached, with citation to medical literature as appropriate: a. whether the appellant is currently diagnosed with any hearing loss or tinnitus in either ear. b. when is the first documented record of the existence of hearing loss and/or tinnitus for the appellant? The examiner should discuss the appellant's description of his exposure to artillery and weapon fire during service, including during his time in Vietnam, as well as all post-service noise exposure. c. Is the appellant's currently claimed hearing loss etiologically related to any incident of service, including exposure to artillery and weapons fire in Vietnam or is the claimed hearing loss more likely due to some other cause or causes, including post-service noise exposure? Any additional development suggested by the evidence should be undertaken. If the audiologist determines that any additional testing is needed before the requested opinions can be rendered, the AMC/RO should schedule the appellant for such testing. In assessing the relative likelihood as to origin and etiology of the bilateral hearing loss and tinnitus specified above, the examiner should apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any claimed disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's hearing loss. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. After the above development is completed, the AMC/RO should arrange for an examination of the appellant by an appropriate specialist (such as a cardiologist or cardiovascular surgeon). The claims file must be made available for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should address the following questions: (a) what cardiac pathology does the appellant currently have and when was said cardiac pathology initially manifested? Does the appellant have any heart disease that is separate from, or in addition to, his hypertensive vascular disease? (b) whether any signs or symptoms noted in service or within one year of service separation (in February 1968) were the first manifestations of the appellant's current cardiac pathology? Whether any current cardiac pathology is otherwise directly related to service? (c) whether any current cardiac pathology was caused by the appellant's PTSD as opposed to some other factor or factors? (d) whether PTSD aggravated, contributed to, or accelerated any existing cardiac or cardiovascular pathology? and A rationale must be provided for all opinions expressed with reference to the medical literature as appropriate. Note: In assessing the relative likelihood as to origin and etiology of the cardiac/cardiovascular pathology currently present, the reviewer should apply the standard of whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any claimed disorder is causally or etiologically related to the Veteran's service or his service-connected PTSD disability or to treatment thereof, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50/50 probability), with the rationale for any such conclusion set out in the report. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's cardiac/cardiovascular pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. After completing all of the above development action, the AMC/RO should arrange for an examination of the appellant by an appropriate specialist (such as a gastroenterologist). The examiner must review the claims file in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should address the following questions: (a) what gastrointestinal pathology does the appellant currently have and when was said gastrointestinal pathology initially manifested? (b) whether any signs or symptoms noted in service or within one year of service separation (in February 1968) were the first manifestations of the appellant's current gastrointestinal pathology? Whether any current gastrointestinal disability is directly related to service? (c) whether any current gastrointestinal pathology was caused by the appellant's PTSD as opposed to some other factor or factors, such as ethanol use/abuse? (d) whether the PTSD aggravated, contributed to, or accelerated any existing gastrointestinal pathology, including esophagitis and gastritis? and A rationale must be provided for all opinions expressed with reference to the medical literature as appropriate. Note: In assessing the relative likelihood as to origin and etiology of the gastrointestinal pathology currently present, the reviewer should apply the standard of whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any claimed disorder is causally or etiologically related to the Veteran's service or his service-connected PTSD disability or to treatment thereof, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50/50 probability), with the rationale for any such conclusion set out in the report. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's gastrointestinal pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 7. Upon receipt of each VA examiner's reports, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the VA reviewer(s) or examiner(s) for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 8. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and readjudicate the issues remaining on appeal. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, including direct, presumptive and secondary service connection as well as by way of aggravation as well as entitlement to an extraschedular evaluation for TDIU. 9. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case, containing notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to each issue remaining on appeal. Appropriate time should be allowed for response. 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). The appellant is hereby notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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. 2010). ______________________________________________ J. N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs