Citation Nr: 1304348 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-09 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 2, 2011, and in excess of 50 percent thereafter. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a bilateral leg disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. During the course of the appeal, in a June 2012 rating decision, the RO granted an increased rating of 50 percent for the Veteran's service-connected PTSD, effective May 2, 2012. Because the subsequent rating decision awarded a higher rating, but less than the maximum available benefit, the increase granted does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issues of entitlement to service connection for a back disability and for a bilateral leg disability 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. Throughout the course of the period under consideration, the Veteran's PTSD is manifested by isolation, which is attributed to his depressed affect and other disturbances of motivation and mood; feelings of being jumpy in crowded places, or with loud noises; sleep impairment due to nightmares; and some impairment of memory. This has caused him difficulty in adapting to stressful circumstances, and difficulty in establishing effective work and social relationships, which in turns contributes to his loneliness. 2. Throughout the course of period under consideration, the Veteran's PTSD is not manifested by intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal hygiene; or inability to establish and maintain effective relationships; nor have other symptoms on par with the level of severity of these examples been shown. 3. The competent and probative evidence does not support a finding that a relationship exists between the Veteran's currently diagnosed tinnitus and his military service. CONCLUSIONS OF LAW 1. The criteria for an assignment of an initial 50 percent disability rating, and no higher, for the service-connected PTSD prior to May 2, 2011 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. The criteria for the assignment of a disability rating in excess of 50 percent for the service-connected PTSD from May 2, 2011 forward have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for service-connected PTSD as well as entitlement to service connection for tinnitus. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in November 2006, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes statements from the Veteran and other individuals, the Veteran's service treatment records, Social Security Administration (SSA) records, as well as private and postservice VA treatment records. Additionally, the Veteran was afforded a VA audiological examination in August 2007, and VA examinations for his PTSD in December 2008 and May 2011. The VA examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, the December 2008 and May 2011 VA examination reports contain sufficient information to rate the Veteran's PTSD under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board is cognizant of the fact that the Veteran's claims folder was available during the August 2007 and December 2008 VA examinations, but was not available during the May 2011 VA examination. However, such did not have an adverse effect on the adequacy of the examination. Notably, as previously indicated, the examiner fully considered the Veteran's complaints, to include his symptomatology associated with his PTSD. A psychiatric examination was then performed that addressed all the relevant rating criteria. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of an accredited representative. In his February 2009 and April 2010 substantive appeals [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issues of entitlement to an increased disability rating for PTSD and entitlement to service connection for tinnitus. Higher evaluation for PTSD Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding, "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"). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). This diagnostic code is deemed by the Board to be the most appropriate because it pertains specifically to the primary diagnosed disability in the Veteran's case-PTSD. In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: 100 percent: 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 and place; memory loss for names of close relatives, own occupation or name. 70 percent: 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 work-like setting); inability to establish and maintain effective relationships. 50 percent: 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 establishing effective work and social relationships. 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). It is noted that the "such symptoms as" language of the diagnostic code listed above means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 co- workers). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. In addition to PTSD, for which service connection was established, the Veteran's treatment history indicates diagnoses of dysthymic disorder. See, e.g., a VA treatment record dated December 2008. Service connection has not been granted for this diagnosed psychiatric disability. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The medical evidence in the instant case does not clearly differentiate between the symptomatology associated with the Veteran's PTSD and that resulting from the dysthymic disorder. Accordingly, for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected PTSD. Staged ratings are currently in effect for the Veteran's PTSD: the disability has been rated as 30 percent disabling prior to May 2, 2011, and 50 percent thereafter. Even so, VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). The Veteran was afforded a VA psychological examination in December 2008. He reported that he was divorced in 1990 and has two children. He described the relationship with his children as "pretty good" and he sees his grandchild on a regular basis. However, he had no other activities or social interaction. He reported that he has no close friends, and has difficulty interacting with others. He retired from working at a warehouse in 1996. He described his mood as "bored" and had difficulty motivating himself to do anything. He also reported depression, and although he denied suicidal ideation, felt he would be better off dead due to pain in his back. He avoided thoughts, feelings, and conversations regarding his experience in Vietnam. Further, the Veteran reported difficulty falling and staying asleep, and had a restricted range of affect. He also reported irritability and hypervigilance. Upon examination, the VA examiner reported that the Veteran's hygiene was good and that he was neatly and appropriately dressed for the weather and situation. No suicidality was present, and judgment and insight was good. The Veteran's attention span and concentration appeared normal, and he was oriented to time, place, and person. VA treatment records dated from December 2008 to June 2010 document the Veteran's continued treatment for his PTSD which included use of medication. The VA treatment records indicate that the Veteran had normal hygiene, no speech problems, organized thought process, no memory problems, and no suicidal or homicidal ideation. The Veteran continued his complaints of nightmares and depression which caused isolation, although he reported that he continued to see his children and has some friends who he sees on regular basis for breakfast. He continued to report that he does not like to go out alone and feels uncomfortable around groups of people. The Veteran also reported that he has attempted to be in a relationship with a woman, but has not been successful which caused loneliness and depression. Treatment records dated December 2008 through June 2010 documented flat affect and depressed mood. September 2009 and March 2010 treatment records noted his complaints of irritability. The Veteran was provided a VA psychiatric examination in May 2011. He continued his complaints of hypervigilance, irritability, apathy, nightmares, and social isolation. He denied persistent depression of mood, suicidal or homicidal ideation, mind racing, periods of bursts of energy, ideas of grandiosity, obsessive compulsive symptoms, or eating disorder symptoms. He reported that he stays home most of the time, but is able to take care of himself with some assistance from his daughter. He stated that he has a few friends who he sees occasionally and that he gets nervous, agitated, and irritable when in a crowded environment. He reported no difficulty handling his finances. Upon examination, the VA examiner indicated that the Veteran's appearance was normal. The examiner also reported a moderate degree of psychomotor retardation, anxious mood, auditory hallucinations, constricted affect, irritable mood, and impaired recent memory. Speech, attitude toward examiner, attention, orientation, thought process, thought content, intelligence, and insight were essentially normal. The examiner further noted intrusive thoughts and efforts to avoid thoughts, feelings, or conversations associated with his military trauma. The Veteran also had markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, hypervigilance, and exaggerated startle response. He did not evidence delusions, inappropriate behavior, panic attacks, or suicidal or homicidal thoughts. The examiner reported that the Veteran has "moderate" impairment of social and employment functioning, and that anxiety, nervousness, and mood changes interfere with his functional status and social activities. The Veteran also submitted numerous lay statements in support of his claim, to include statements from his ex-wife, daughter, friend, and former co-worker. The lay statements document the Veteran's irritability, hypervigilance, nightmares, impaired memory, and social isolation. C.C. submitted a statement indicating that she has attempted to be in a relationship with the Veteran and that he has physically assaulted her while he was having a nightmare on multiple occasions. Based on the evidence of record, the Board initially finds that the evidence supports the higher, 50 percent disability for the Veteran's service-connected PTSD prior to May 2, 2011. Although the Veteran does not have all of the symptomatology consistent with the assignment of a 50 percent rating, for example impaired judgment, or circumstantial, circumlocutory, or stereotyped speech, the Board finds that the impact of the Veteran's PTSD on his social and industrial functioning is sufficient to approximate the degree of impairment contemplated by a 50 percent rating. See 38 C.F.R. § 4.7 (2012). Criteria for the assignment of a 50 percent rating, which have arguably been met or approximated include impaired affect, impairment of memory, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. Specifically, a review of the medical evidence indicates that the Veteran's psychiatric symptomatology centers on his isolation, which is attributed to his depressed affect and other disturbances of motivation and mood; feelings of being jumpy in crowded places, or with loud noises; sleep impairment due to nightmares; and some impairment of memory. This has caused him difficulty in adapting to stressful circumstances, and difficulty in establishing effective work and social relationships, which in turns contributes to his loneliness. These symptoms are more congruent with the assigned 50 percent disability rating. As such, the Board concludes that an increased rating of 50 percent is warranted prior to May 2, 2011. See 38 C.F.R. § 4.7 (2012). With regard to whether the Veteran is entitled to a disability rating in excess of 50 percent throughout the course of the appeal, the Board finds the preponderance of the evidence to be against such. With respect to whether the Veteran is entitled to a 70 percent disability rating, the Board notes that the competent and probative evidence, to include VA treatment records and lay statements from the Veteran and other individuals, documents his difficulty adapting to stressful circumstances and an occasion of suicidal ideation. These are two criteria found in the 70 percent rating category; however, they cannot be viewed in isolation of the other evidence of the Veteran's overall functioning. While the Veteran stated to the December 2008 VA examiner that he would be better off dead due to pain in his back, this appears to be an isolated incident. He has denied suicidal ideation on numerous other occasions and has further shown no plans or intent. He also has no recent legal difficulties related to his PTSD. Moreover, the Veteran has denied obsessive rituals which interfere with routine activities. The evidence of record also does not document speech intermittently illogical, obscure, or irrelevant or neglect of personal appearance and hygiene. On the contrary, the Veteran's treatment records document normal speech and clean appearance. The evidence of record also documents normal orientation. Additionally, the Veteran has not reported panic attacks. Although he has reported depression, he has not reported that the depression is near-continuous affecting his ability to function independently, appropriately and effectively. While he does have episodes of depression, he remains able to take care of himself with some assistance from his daughter. He is able to grocery shop and occasionally go out to eat. He is also able to manage his personal finances. Finally, although the Board acknowledges that the Veteran has difficulty in establishing effective work and social relationships, the evidence of record shows that he is able to maintain a few effective relationships. Specifically, the December 2008 and May 2011 VA examination reports as well as the VA treatment records indicate that the Veteran sees his two children and grandchild on a regular basis. Moreover, the May 2011 VA examination report notes that the Veteran has a few friends who he sees occasionally. Indeed, R.M. and M.F. submitted lay statements noting that they were friends of the Veteran and that they see him occasionally. Further, the Veteran reported during a June 2010 VA mental health evaluation that he usually goes out to have breakfast with his friends. In light of the foregoing, the Board concludes that, while the Veteran demonstrates two of the criteria listed for a 70 percent disability rating, the evidence of record does not show that his overall level of severity more closely approximates the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130. Moreover, there are no other factors which would lead the Board to conclude that a 70 percent disability rating is warranted. See Mauerhan v. Principi, supra [the specified factors for each incremental rating are examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme]. Rather, his level of functioning is greater than that contemplated by the 70 percent rating category. The Board also considered the Veteran's entitlement to a 100 percent disability rating. There is no indication of total occupational and social impairment, as would be required by such a rating. The Board notes that the Veteran reported auditory hallucinations once. See the May 2011 VA examination report. C.C. also stated that when he had nightmares, he would sometimes physically assault her. However, there is no evidence of gross impairment in thought processes and communication or grossly inappropriate behavior; nor is there intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives or own name. At no point has the Veteran been described as being persistent danger of hurting other people. As such, the Board finds that while the Veteran arguably demonstrates two of the criteria listed for a 100 percent disability rating, the evidence of record does not show that his overall level of severity more closely approximates the criteria for a 100 percent disability rating under 38 C.F.R. § 4.130. Moreover, there are no other symptoms experienced by this Veteran that would lead the Board to conclude that a 100 percent disability rating is warranted. See Mauerhan, supra. The Board also observes that the Veteran has been assigned GAF scores between 52 and 55, which indicate moderate impairment with a GAF of 55 at his recent VA examination. The GAF scores of 52 and 55 are appropriately reflected in the assignment of a 50 percent disability rating. In summary, the Board finds that the symptomatology associated with the Veteran's PTSD more closely approximates the criteria which allows for the assignment of a 50 percent evaluation prior to May 2, 2011, and that a rating in excess of 50 percent is not warranted throughout the course of the appeal. Extraschedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various mental health professionals are the symptoms included in the criteria found in the rating schedule for mental disabilities. As discussed above, when the Veteran's symptoms and the effects of his PTSD disability are compared to the criteria in the ratings schedule, his 50 percent evaluation accurately reflects the level of severity of his disability during the time periods in question. The schedular criteria are not inadequate for rating this Veteran's PTSD disability. As a result, referral for extra-schedular consideration is not for application in this case. See Thun v. Peake, 22 Vet. App. 111 (2008). In granting in part, and denying in part, the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran was awarded entitlement to TDIU effective April 30, 2010 in a rating decision dated July 2011. The record does not reflect that the Veteran filed a notice of disagreement with regard to the effective date assigned. Service connection for tinnitus Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). The Veteran is claiming entitlement to service connection for tinnitus, which he contends is due to his military service. See, e.g., the Veteran's claim for VA benefits dated April 2006. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. As to Hickson element (1), it is undisputed that the Veteran is currently diagnosed with tinnitus, as is evidenced by the report of the August 2007 VA audiological examination. Hickson element (1) is, therefore, satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately. Concerning in-service disease, a review of the Veteran's service treatment records reveals no evidence of tinnitus. With respect to in-service injury, the Veteran maintains that he developed tinnitus due to noise exposure in service including firing weaponry and from exploding mines. See, e.g., the August 2007 VA examination report. The Veteran served on active duty from January 1966 to January 1969. His DD Form 214 reflects that his military occupational specialty combat engineer. As indicated above, his service treatment records are negative for any history, treatment, or diagnosis of tinnitus. Nonetheless, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training as a combat engineer, would be consistent with exposure to loud noise in service. This is sufficient to satisfy Hickson element (2), in-service injury. Turning to crucial element (3), medical nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record supports a finding that the Veteran's current tinnitus is not related to his military service. Specifically, the Veteran was afforded a VA audiological examination in August 2007. In addition to the results of a current audiological examination, the VA examiner considered the Veteran's history of military noise exposure from firing weaponry as well as from exploding mines. The Veteran also reported the onset of the tinnitus in the 1970s, and that his occupation was a factory worker. Despite the Veteran's in-service noise exposure, the audiologist concluded that the Veteran's tinnitus "is not caused by or a result of acoustic trauma while in military service." The audiologist's rationale for her conclusion was based on a review of the Veteran's claims folder and the Veteran's report that his tinnitus started in the 1970s after discharge from service. She also opined that the Veteran's tinnitus is most likely due to occupational noise exposure. The August 2007 VA audiological examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the August 2007 VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent any symptomatology of tinnitus for several years after service. Further, in rendering the opinion, the VA examiner considered the Veteran's service treatment records and his report of military noise exposure, and determined that the in-service exposure to noise did not cause his current tinnitus. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including ringing in his ears), has presented no probative clinical evidence of a nexus between his tinnitus and his military service. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to acoustic trauma during service. That is, the Veteran is not competent to opine on matters such as the etiology of his current tinnitus. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a medical nexus between his tinnitus and his military service to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had tinnitus continually since service. However, the first postservice evidence of complaint of, or treatment for tinnitus is dated in April 2006 when the Veteran filed his claim for VA benefits. This was more than 35 years after the Veteran left service in January 1969. Additionally, he reported to the August 2007 VA examiner that the ringing in his ears did not start until the 1970s, several years after service. While the Veteran is competent to report tinnitus over the years since service, the Board notes that tinnitus was not reported at the time of his service discharge, nor for several years thereafter. The Board finds that his current statements regarding a continuity of tinnitus since service are not credible. His January 1969 separation examination from service as well as the August 2007 VA examination contradict any current assertion that his current tinnitus was manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for tinnitus for many years after his separation from 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]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an initial 50 percent disability rating for service-connected PTSD, prior to May 2, 2011, is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD, from May 2, 2011 forward, is denied. Entitlement to service connection for tinnitus is denied. (CONTINUED ON NEXT PAGE) REMAND Service connection for back and bilateral leg disabilities VA regulations provide, in pertinent part, that a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner, supra. The Veteran contends that his back and leg disabilities are related to an in-service accident when a motor vehicle he was riding in exploded over a land mine. See, e.g., a statement from the Veteran dated October 2007. The Board notes that the Veteran's reported motor vehicle accident has been verified by the U.S. Armed Services Center for Unit Records Research (CURR). Accordingly, evidence of an in-service injury is met. With respect to a current disability, the Veteran underwent a VA examination in August 2007 in conjunction with coronary artery disease, hypertension, and diabetes mellitus claims which are currently not on appeal. Although a musculoskeletal examination indicated essentially normal results, it is unclear from the report whether the Veteran's back and legs were thoroughly examined. In this regard, the Board notes that an MRI of the Veteran's lumbar spine dated January 2005 documents post operative changes at L4-5 level and mild bilateral neuroforaminal narrowing at the L4-5 level. A November 2006 private treatment record from M.K., M.D., notes a history of back pain, and a January 2007 VA treatment record notes left thigh pain. Historically, the Board notes that the Veteran reported on his November 1965 pre-induction examination that he had chronic back symptoms. Pertinently, he was placed on a profile for physical capacity or stamina, and his temporary profile was listed as a "2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Further, a June 1966 service treatment record noted his report of an injury to his thigh prior to service. Moreover, on his report of medical history in conjunction with his January 1969 separation examination, he reported cramps in his legs and recurrent back pain. There is no opinion of record that addresses whether there is clear and unmistakable evidence that the Veteran's back and bilateral leg disabilities preexisted military service and, if it did, whether there is clear and unmistakable evidence that the back and bilateral leg disabilities were not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2012); Wagner, supra; VAOPGCPREC 3-2003. In light of the foregoing, the Board finds that an opinion for such must be obtained. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the claims remanded herein. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his back and bilateral leg disabilities. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a. Identify whether the Veteran currently suffers from a back, right leg, and/or left leg disability. b. If the examiner determines that the Veteran currently suffers from a back, right leg, and/or left leg disability, provide an opinion as to whether there is clear and unmistakable evidence (obvious or manifest) that the Veteran had any of these disabilities prior to his entry onto his period of active duty. Review of the entire file is required; however attention is invited to the November 1965 pre-induction examination and subsequent profile. c. If the VA examiner determines that the Veteran's back, right leg, or left leg disability pre-existed his military service, provide an opinion as to whether there is clear and unmistakable evidence (obvious or manifest) that they were NOT aggravated to a permanent degree in his service beyond that which would be due to the natural progression of the disability. Review of the entire file is required; however attention is invited to the June 1966 service treatment record noting a thigh injury and the January 1969 separation examination history, reporting cramps in the legs and recurrent back pain. d. If the VA examiner determines that the Veteran's back, right leg, or left leg disability did not pre-exist his military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's back, right leg, or left leg disability is etiologically related to his military service, to include his in-service complaints of back pain and leg cramps as well as his credible report of in-service motor vehicle accident. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should indicate in his/her report that the claims folder was reviewed. The reasons behind all opinions expressed should be provided. 3. When the development requested has been completed, and after undertaking any additional development deemed by it to be appropriate, readjudicate the Veteran's claims. If any action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs