Citation Nr: 1310096 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-37 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an evaluation in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) with depressive disorder, not otherwise specified. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and C.B. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Denver, Colorado. In February 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing at the RO located in Denver, Colorado. A transcript of the proceeding has been associated with the claims file. The issue of entitlement to an evaluation in excess of 50 percent disabling for PTSD with depressive disorder, not otherwise specified, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus is related to his active service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim for service connection for tinnitus is granted herein, as explained in detail below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a 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 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2011). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The Veteran served on active duty in the Air Force from July 1966 to July 1970, including service in Vietnam from July 1967 to July 1968. See AF Form 7; DD Form 214. He claims that he incurred tinnitus in service as a result of acoustic trauma from his duties as an aircraft mechanic and from working on the flight line. He asserts that he has experienced tinnitus since service. As an initial matter, the Board acknowledges that the Veteran's service treatment records are silent as to any complaints of tinnitus. At the same time, however, the Board acknowledges that his personnel records do reflect that he served as an aircraft mechanic from January 1967 until his separation from service in July 1970. See AF Form 7. Also, the Board acknowledges his testimony at the Board hearing that he worked as an aircraft mechanic throughout his career in the Air Force, including with reciprocating (propeller driven) and quad aircraft, as well his testimony regarding his duties on the flight line. See Transcript at 3. He testified that the aircraft were loud and that he did not have hearing protection. See id. at 3-4. He also testified that he fired an M-16 during guard duty on the perimeter at the Bien Hoa Air Base while serving in Vietnam. See id. at 10-11. The Veteran testified that he remembered experiencing ringing in his ears when he underwent testing in August 1970 (a few weeks post service) to work as an air traffic controller but did not say anything because he did not want to jeopardize his future, and that his co-workers there would complain about how loud he spoke due to the ringing in his ears. See id. at 5, 7, 9. He testified that while working as an air traffic controller for 10 years, he worked in a center with headsets and that the noise was nowhere near as loud as in service on the flight deck in service. See id. at 4-5. The Board also notes that records in the claims file reflect that the Veteran subsequently worked as a truck driver for 20 years. The Veteran testified that the ringing in his ears progressively worsened since service, but it was not until his domestic partner, Ms. C.B., began yelling at him that he was talking too loud that he began to pay attention and applied for service connection. See id. at 7-9. In light of the Veteran's military occupational specialty of an aircraft mechanic and his testimony regarding his exposure to loud noise from aircraft being consistent with that service, the Board concedes that the Veteran experienced acoustic trauma in service, such that discussion of the combat presumption provisions of 38 U.S.C.A. § 1154 is not necessary, as acoustic trauma has been established. The Veteran was provided with a VA examination in March 2008. He reported experiencing tinnitus in both ears, described as a high pitched ringing sensation that began in service. He reported that it occurs for five to 10 minutes per day. He reported a history of exposure to loud noises in service serving as an aircraft mechanic, and from rockets, jets, and explosions in Vietnam. He also reported his post-service history of noise exposure from working as an air traffic controller and a bus driver. Distortion product otoacoustic emissions testing revealed decreased emissions at 6000 to 8000 hertz in the right ear and 6000 hertz in the left ear, and the examiner noted that the results indicated inner ear (cochlear outer hair cell) damage which may result in tinnitus. The examiner noted that the Veteran's reported symptoms were adequate to warrant a diagnosis of tinnitus, but opined that due to the Veteran's separation audiogram documenting normal hearing bilaterally, his tinnitus was less likely as not caused by or a result of his military noise exposure. The Board also acknowledges diagnosed tinnitus in the Veteran's VA treatment records. See, e.g., July 2009. The Board acknowledges again that the Veteran's service treatment records are silent as to any complaints of tinnitus, and that the first documented complaint of tinnitus in his VA treatment records was not until 2009. At the same time, however, the Board the Board is cognizant of the Court of Appeal's decision in Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), wherein the Federal Circuit determined that the Board erred by finding that a claimant's statements lacked credibility due to the lack of contemporaneous medical evidence of complaint. Moreover, the Board acknowledges that the Veteran, as a lay person, is competent to report experiencing tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002); 38 C.F.R. § 3.159(a)(2) (2012). The Board ultimately finds that it has no reason to disbelieve the Veteran's reports of having tinnitus that started in service. While the Board acknowledges that some post-service occupational noise exposure has been reported by the Veteran, there is no medical evidence of record tending to link the Veteran's tinnitus to any post-service noise exposure, and the Board ultimately finds the Veteran's testimony credible to the effect that any noise exposure while working in the air traffic control center or as a truck driver was nowhere near as loud as the noise he was exposed to in service as an aircraft mechanic and on the flight line. Therefore, having found that the Veteran experienced acoustic trauma in service, and having found the Veteran's reports of tinnitus that began in service credible, the Board finds that taking into account the March 2008 VA examiner's opinion, the evidence is in relative equipoise as to whether the Veteran's tinnitus is related to his active service. Based thereon, the Board will resolve all doubt in favor of the Veteran and grant the claim for service connection for tinnitus. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran's service-connected PTSD with depressive disorder, not otherwise specified, is currently assigned a 50 percent disability rating. The Veteran seeks a higher rating. At the February 2013 Board hearing, Veteran and his domestic partner, Ms. C.B., testified that the Veteran's symptoms have worsened. The Veteran testified that at times, he becomes disoriented as to place (he described going to a restaurant and then leaving and not knowing where he was). See Transcript at 13. He also testified that he experienced suicidal ideations two or three times per week. See Transcript at 14. These symptoms were not noted in the most recent April 2012 VA examination report. Based thereon, the Board finds that a remand is necessary to provide the Veteran with a new VA examination to address the current severity of his service-connected PTSD with depressive disorder, not otherwise specified. In addition, as the Veteran receives mental health care through VA, records dating from January 2010 to May 2011 and from September 2012 should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records as follows: a. those dating from January 2010 to May 2011, and b. those dating from September 2012. 2. Afford the Veteran a new VA psychiatric examination for the purpose of determining the current severity of his service-connected PTSD with depressive disorder, not otherwise specified. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. The examiner should describe in detail all current manifestations of the Veteran's PTSD with depressive disorder, not otherwise specified. The examiner must also enter a complete multiaxial evaluation, and assign a GAF, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. 3. Then, readjudicate the Veteran's claim. For any claim that is not granted to the fullest extent, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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 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). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs