Citation Nr: 1308199 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-46 511A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for posttraumatic stress disorder (PTSD) with depression not otherwise specified (NOS) and anxiety (NOS). 2. Entitlement to a disability rating greater than 50 percent for PTSD with depression (NOS) and anxiety (NOS), from July 20, 2009. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO granted service connection for PTSD with depression NOS and anxiety NOS, assigning a 10 percent disability rating effective September 28, 2007 (the date of the Veteran's claim) and denied service connection for bilateral hearing loss and tinnitus. In September 2008, the Veteran filed a notice of disagreement (NOD) with regard to the rating assigned for his psychiatric disorder, and in March 2009, the Veteran filed an NOD with regard to the bilateral hearing loss and tinnitus claims. A statement of the case (SOC) was issued for all three issues in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2009. Because the Veteran disagreed with the initial rating assigned following the award of service connection for his PTSD with depression NOS and anxiety NOS, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO granted a higher, 50 percent rating from July 20, 2009, inasmuch as higher ratings for this disability are available both before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as to rating for service-connected psychiatric disability as now encompassing the first and second matters set forth on the title page. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During this hearing the Veteran submitted a recent private audiological examination report dated in November 2012 along with a waiver of RO consideration of the additionally submitted evidence. 38 C.F.R. §§ 20.800. 20.1304 (2012). Also during the hearing, the Veteran requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claim. The Veteran has submitted additional evidence to the Board, but has not waived initial RO consideration of the submitted evidence in accordance with 38 C.F.R. § 20.1304(c). The Board notes that, in addition to the paper claims file, there is paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveal VA outpatient treatment records dated from August 2003 through August 2012. Significantly, these records were considered by the RO in the most recent August 2012 supplemental statement of the case (SSOC). The remaining records in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the claims on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, during the December 2012 Board hearing the Veteran raised the issue of entitlement to service connection for sleep apnea as secondary to his service-connected PTSD. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), here, the RO. Therefore, the Board does not have jurisdiction over this matter, and it is thus referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further RO action on all claims on appeal is warranted. Initially, with regard to all three claims, the Board notes that in January 2013 the Veteran submitted additional evidence. Specifically, the Veteran submitted a statement from his wife, C.A.W. (whom the Veteran has known since 1988) in which the Veteran's wife wrote that the Veteran complained of both hearing loss and tinnitus since they had first met. The Veteran's wife also wrote that the Veteran's PTSD resulted in him being anxious, having road rage and sleep apnea, and having difficulty establishing relationships. Significantly, the Veteran's wife wrote that the Veteran had no contact with his adult sons. The Veteran also submitted VA treatment records dated from December 2010 through December 2012 and the Veteran's prescription history from October 2003 through January 2013. The Veteran did not submit a waiver with regard to the newly submitted evidence which pertains to all three issues on appeal. While the Veteran submitted a waiver of RO consideration of evidence submitted at the time of the December 2012 Board hearing, the Board notes that this waiver only applied to evidence that was given to the undersigned Veterans Law Judge the day of the hearing. Furthermore, the RO has not had a chance to review the additional evidence received in January 2013. See 38 C.F.R. § 20.1304 (2012). Hence, the Board has no alternative but to remand the matters on appeal for RO consideration of the claims in light of the additional evidence, in the first instance. With regard to the Veteran's service-connected psychiatric disability, the Board notes that during the December 2012 Board hearing the Veteran reported that he was receiving regular treatment for his psychiatric disorder at a VA facility and that those records demonstrate an increase in severity of his psychiatric disorder. A review of the claims file (to include the electronic file) reveals that the Veteran consistently sought VA treatment from the VA outpatient clinic in Rockford, Illinois and the VA Medical Center (VAMC) in Madison, Wisconsin from August 2003 to August 2012. While, in January 2013, the Veteran submitted additional VA treatment records dated from December 2010 through December 2012 it appears that these records are not complete. Additionally, there are no treatment records dated after December 2012. The Board emphasizes that 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). Hence, the RO should obtain from the identified facility all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 2012. October 2009. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, relevant to his PTSD with depression (NOS) and anxiety (NOS), the Veteran was most recently afforded a VA examination in March 2012. During the December 2012 Board hearing, the Veteran's representative indicated that the Veteran's psychiatric disorder has worsened and a new, more contemporaneous VA examination was requested. Thus, the Board finds that new VA examination is needed to ensure that the record reflects the current nature and severity of the Veteran's service-connected PTSD with depression (NOS) and anxiety (NOS). See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Hence, the RO should arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claims for higher ratings(both of which emanated from an award of service connection). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. With regard to the bilateral hearing loss and tinnitus issues, upon enlistment examination in January 1966 the Veteran denied "ear, nose or throat trouble" and "running ears." The Veteran's January 1966 enlistment examination shows normal "ears" and notes the following audiological findings: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 -5 5 -5 Left Ear 5 5 10 0 The Veteran's service treatment records are negative for any ear complaints or audiological testing. Upon separation examination in December 1969 the Veteran denied "ear, nose or throat trouble" and "running ears." However, the Veteran did report a history of "hearing loss." The Veteran's December 1969 separation examination shows normal "ears" and notes the following audiological findings: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 5 10 Left Ear 5 5 5 10 The Veteran submitted a claim for service connection for bilateral hearing loss in September 2007. In connection with this claim he submitted a November 2006 private audiological examination report which noted the following audiological findings: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 30 40 35 20 Left Ear 20 20 40 25 30 The Veteran was afforded a VA audiological examination in March 2008. Audiometric testing performed at that time revealed the following pure tone thresholds, in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 30 35 30 25 Left Ear 20 25 35 25 25 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 30 Left Ear 27.5 Speech Recognition Right Ear 96% Left Ear 96% During this examination, the Veteran reported that he worked as a communications center specialist and was exposed to 12 plus hour shifts of teletype noise. He was also exposed to explosions/mortars/rockets/gunfire during his military service in Vietnam. Post-service the Veteran worked in a quiet office specializing in insurance claims management and real estate. Recreationally, the Veteran reported infrequent use of power tools for home improvement projects without hearing protection and loud music for two years without hearing protection. The examiner diagnosed mild sensorineural hearing loss bilaterally at 4000Hz for the right ear and from 3000 to 4000 Hz for the left ear and tinnitus. The examiner reviewed the January 1966 enlistment examination, December 1969 separation examination, and November 2006 post-service audiological report. With regard to the hearing loss issue, the examiner opined that the Veteran's bilateral hearing loss was less likely as not (less than 50/50 probability) caused by or a result of his reported in-service noise exposure. The examiner noted that the Veteran had normal hearing bilaterally on separation examination and that if the Veteran had hearing loss related to in-service noise exposure, it would have been present at the time of discharge. With regard to the tinnitus issue, the examiner opined that the Veteran's tinnitus was less likely as not (less than 50/50 probability) caused by or a result of his reported in-service noise exposure. The examiner noted that, by the Veteran's own report, his tinnitus began in approximately 1990. According to the examiner, this is too remote in time to be attributed to the military noise exposure he sustained 20 years earlier. Tinnitus as a result of noise exposure would be expected to begin at the time of the noise exposure or within the first year following the noise exposure. Additionally, the examiner noted that there was not mention of tinnitus in the claims file. During the December 2012 Board hearing, the Veteran submitted a November 2012 private audiological examination report which noted the following audiometric testing results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 30 50 60 65 Left Ear 25 40 70 85 90 Notably, the Board notes that according to the results reflected in the March 2008 VA examination report, the Veteran then had right ear hearing loss disability, as defined in 38 C.F.R. § 3.385, but did not have left ear hearing loss. However, both the November 2006 and November 2012 private audiological evaluation reports show bilateral hearing loss disability for VA purposes. Unfortunately, the March 2008 VA examiner failed to discuss the Veteran's contemporaneous complaint of hearing loss upon separation examination in December 1969. As the examiner did not address this evidence, the Board cannot determine whether or not she had knowledge of pertinent case facts. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008). Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, the March 2008 VA examiner should be given the opportunity to supplement her report and provide an opinion as to whether the Veteran's current bilateral hearing loss and/or tinnitus is related to his military service to include the Veteran's confirmed in-service noise exposure. 38 C.F.R. § 3.159(c)(4). While these matters are on remand, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012) The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating each claim, the RO should consider all evidence added to the record since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Madison VAMC (and any associated facilities) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should specify what evidence VA will provide and what evidence the Veteran is to provide. In the letter, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a mental disorders examination by a VA psychiatrist or psychologist (or a psychiatrist or psychologist contracted by VA). The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record). All necessary tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal and/or homicidal ideation; and delusions and/or hallucinations. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's PTSD with depression (NOS) and anxiety (NOS), and an explanation of what the score means. The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's PTSD with depression (NOS) and anxiety (NOS) at any point since the September 28, 2007, effective date of the award of service connection for the disability, and, if so, the approximate date(s) of any such change(s). The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy or this REMAND, to the audiologist who examined the Veteran in March 2008 for an addendum opinion. With respect to currently diagnosed bilateral hearing loss (to an extent recognized as a disability for VA purposes), and asserted and tinnitus, the examiner should opine, with respect to each diagnosed disability, whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability resulted from injury or disease incurred or aggravated in service, to specifically include likely in-service noise exposure associated with combat service in Vietnam. In rendering the requested opinion, the examiner is specifically requested to consider and discuss the Veteran's complaint of hearing loss on separation examination in December 1969. The examiner should set forth clearly stated rationale for the conclusions reached in a printed (typewritten) report. 6. If the prior examiner is not available, or another examination is deemed warranted, arrange for the Veteran to undergo VA audiology examination, by a physician or audiologist, ,at a VA facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate testing (to include audiometry and speech discrimination) should be accomplished, with all results made available to the examiner prior to the completion of his or her report. Based on the testing results, the examiner should clearly indicate, with respect to each ear, whether the Veteran has hearing loss to an extent recognized as a disability for VA purposes. The examiner should also indicate whether the Veteran has tinnitus. Then, with respect to each such diagnosed disability, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability resulted from injury or disease incurred or aggravated in service, to specifically include likely in-service noise exposure associated with combat service in Vietnam. The examiner is specifically requested to consider and discuss all pertinent medical and lay evidence, to particularly include the Veteran's complaint of hearing loss on separation examination in December 1969. All examination findings , along with a complete, clearly stated rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 7. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 8. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 10. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication ; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).