Citation Nr: 1237153 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-21 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a right ankle disability. 5. Whether the severance of service connection for hearing loss of the right ear was proper. 6. Whether the reduction of the assigned disability evaluation for left ear hearing loss was proper. 7. Entitlement to service connection for hearing loss of the right ear. 8. Entitlement to an increased evaluation for left ear hearing loss. 9. Entitlement to an evaluation in excess of 10 percent for recurrent tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from November 1967 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a VA Decision Review Officer at a June 2009 hearing conducted at the RO. A transcript of the hearing is of record. The issues of: whether the severance of service connection and reduction in evaluation for right and left ear hearing loss, respectively; service connection for a right ankle disability and right ear hearing loss; and an increased evaluation for left ear hearing loss 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 Veteran has been diagnosed with PTSD per the DSM-IV criteria due to his fear of hostile military action during his service within the Republic of Vietnam. 2. The Veteran has not been diagnosed with a chronic left ankle disability at any point during the appeal period. 3. The Veteran has not been diagnosed with a chronic left leg disability at any point during the appeal period. 4. The Veteran's service-connected recurrent tinnitus is assigned a 10 percent evaluation, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for a left leg disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for the assignment of an evaluation in excess of 10 percent for recurrent tinnitus have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification through May and November 2008 and September 2009 notice letters. The Veteran's claims have been readjudicated, most recently in an October 2011 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 . VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records and reports related to the disabilities adjudicated below that have been identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 327 F. 3d 1339 (Fed. Cir. 2002). The Veteran was provided VA examinations in December 2008 and March 2010, which are adequate for the purposes of deciding the Veteran's claims. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159 . Analysis In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. I. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr, 21 Vet. App. at 307 (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. PTSD The Veteran contends he suffers from PTSD as a result of his active service, specifically the circumstances surrounding his experience serving in the Republic of Vietnam. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). As the Veteran did not engage in combat, his alleged stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement of "credible supporting evidence" means that "the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). If a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f)(3) (2012). For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, ..., and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. The record contains a difference of opinion regarding whether the Veteran has a current diagnosis of PTSD that conforms to the DSM-IV criteria. See 38 C.F.R. § 3.304(f). The report of a March 2010 VA examination finds the Veteran does not meet the criteria for a diagnosis of PTSD in the context of an "external incentive (i.e., disability benefits)." However, VA treatment records, including a statement from the Veteran's treating VA psychiatrist, contain diagnoses of PTSD. See, e.g., December 2009 VA psychiatry outpatient note. The March 2010 VA examiner notes the previous diagnoses of PTSD "were conferred in a clinical context where different diagnostic guidelines apply...." The Board is required to resolve all doubt in favor of the Veteran. Faced with two conflicting medical opinions, both by qualified medical professionals, one of which (the Veteran's treating psychiatrist) provides a diagnosis of PTSD, the Board finds the record contains a valid diagnosis of PTSD. Further, the Veteran's treating VA psychiatrist, Dr. P.H.W., has related the Veteran's PTSD to his experiences while serving in the Republic of Vietnam. For example, in an August 2010 statement, Dr. P.H.W. notes the Veteran reports re-experiencing situations of trauma he observed while stationed in Vietnam. An April 2009 VA psychiatry note indicates the Veteran experienced several traumatic events in Vietnam, but was not active in combat. This record also indicates the Veteran is fearful of harm to his children after seeing a dead child combatant in Vietnam. Even though the Veteran did not experience combat, he did serve in a combat zone. A reasonable interpretation of the VA treatment records and August 2010 statement indicate that the basis for a diagnosis of PTSD includes fear due to the Veteran's service in the Republic of Vietnam. Service connection for PTSD is warranted. See 38 C.F.R. § 3.304(f). Left Ankle and Leg Disorders The Veteran seeks service connection for a left ankle and left leg disability due to in-service injuries. Significantly, there is no competent evidence of record to indicate he has been diagnosed with a chronic left ankle or left leg disability at any point in the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). The report of a March 2010 VA examination finds that, despite the Veteran's subjective complaints, there is no objective evidence to support a diagnosis of either a left ankle or left leg disability. The VA examiner found that an in-service laceration to the left shin in service resolved without any residuals. The Board acknowledges the Veteran current complaints of left ankle and leg pain. However, pain is not, in and of itself, a disability for the purposes of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran has not identified any competent medical records which may support a diagnosis of a left ankle or left leg disability. Rather, he asserts that consideration is due for pain and inflammation of the left leg and ankle. See, e.g., July 2010 notice of disagreement. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The established factor of an in-service left ankle and/or left leg injury is not germane in the absence of any resulting disability. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for left ankle and left leg disorders is not warranted. II. Increased Evaluation The Veteran seeks an evaluation in excess of 10 percent for recurrent tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, which provides for a single 10 percent evaluation, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The current version of Diagnostic Code 6260 specifically prohibits a schedular evaluation in excess of a single 10 percent rating for tinnitus, however perceived. Therefore, as a matter of law, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The symptoms of the Veteran's recurrent tinnitus, namely ringing or buzzing in the ears, are contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for PTSD is granted. Service connection for a left ankle disability is denied. Service connection for a left leg disability is denied. An evaluation in excess of 10 percent for tinnitus is denied. REMAND VA Examinations The Veteran was provided a VA examination for his claimed right ankle disability and right ear hearing loss in October 2008 and December 2008, respectively. In both instances, a diagnosis of a chronic disability was rendered, and both VA examiners found the disability in question was not related to the Veteran's active service. However, neither VA examiner provided a rationale for their negative opinion. Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). As such, the Veteran must be provided new VA joint and audiological examinations to determine whether his current residuals status post right ankle surgery and/or right ear hearing loss are etiologically related to his active service. Issuance of Statement of the Case In a December 2009 rating decision, the RO severed service connection for hearing loss of the right ear, and reduced the assigned disability evaluation for hearing loss of the left ear. The Veteran filed a timely notice of disagreement with this decision in February 2010. While an October 2011 statement of the case (SOC) addresses service connection for right ear hearing loss and an increased evaluation for left ear hearing loss on the merits, no SOC has been issued addressing the Veteran's NOD with respect to the issues of severance and rating reduction. The appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran will then have an opportunity to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Intertwined Issue The Veteran's claim for an increased evaluation for left ear hearing loss is impacted by the outcome of his claims to restore service connection for hearing loss of the right ear and the prior assigned evaluation for hearing loss of the left ear/bilateral hearing loss. Therefore, this claim is inextricably intertwined with other claims being remanded. All issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the increased evaluation claim must be remanded. The case is REMANDED for the following action: 1. Issue a statement of the case addressing the issues of whether the severance of service connection for right ear hearing loss and reduction in disability evaluation for left ear hearing loss was proper. Advise the Veteran that he must complete his appeal of these issues by filing a timely substantive appeal following the issuance of a statement of the case. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any right ankle disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies are to be conducted, and any consultations deemed necessary must be accomplished. After reviewing the record and examining the Veteran, the examiner is to provide an opinion as to whether it is at least as likely as not (i.e., probability of at least 50 percent) that any current right ankle disability is caused or aggravated by the Veteran's active military service. The examiner must specifically comment on the Veteran's assertion of a continuity of symptomatology since service. A complete rationale must be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any right ear hearing loss. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies are to be conducted, and any consultations deemed necessary must be accomplished. After reviewing the record and examining the Veteran, the examiner is to provide an opinion as to whether it is at least as likely as not (i.e., probability of at least 50 percent) that any current right ear hearing loss is caused or aggravated by the Veteran's active military service. The examiner must specifically comment on the Veteran's assertion of in-service acoustic trauma. A complete rationale must be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If any of the benefits sought on appeal are not granted, provide the Veteran with a supplemental statement of the case and allow an appropriate period of time 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). 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. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs