Citation Nr: 1310586 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-04 624 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to 1971, with combat service in Vietnam from May 1969 to April 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision that, in pertinent part, denied service connection for bilateral hearing loss and for tinnitus; and from a September 2009 rating decision that, in pertinent part, denied a disability rating in excess of 50 percent for service-connected PTSD. The Veteran timely appealed. The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. While the Veteran has indicated that he is unable to perform some work activities due to his service-connected disabilities, he has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND Records VA had previously requested records of the Veteran's treatment at the Vet Center in Bloomfield, New Jersey. It appears that the wrong social security number was provided in the request. The claims file does not contain any treatment records and/or summary of treatment from that facility. Another attempt should be made to obtain records and/or summary of treatment from that facility, using the Veteran's correct social security number. 38 U.S.C.A. § 5103A(b) (West 2002). Any additional VA treatment records for the Veteran's PTSD, for bilateral hearing loss, and for tinnitus-dated from December 2009 to the present, should be associated with the Veteran's paper claims file or his Virtual VA file. VA is obliged to assist a Veteran to obtain evidence pertinent to his claims. See 38 U.S.C.A. § 5103A (West 2002). PTSD In evaluating the Veteran's request for an increased disability rating, the Board considers the medical evidence of record. The Veteran contends that the service-connected PTSD is more severe than currently rated, and warrants an increased disability rating. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran was last afforded a VA examination to evaluate the severity of his service-connected PTSD in October 2008. At that time the Veteran reported sleep impairment; argumentative behavior; and some spatial disorientation. He denied auditory or visual hallucinations, and denied feeling suicidal. His mood was mildly depressed, and his memory was normal. He reported occasional thoughts about the Vietnam war. The examiner noted that the Veteran experienced some isolation, and was able to function generally well in his life and had interests. A global assessment of functioning (GAF) score of 61 was assigned. Since then, the Veteran described a worsening of PTSD symptoms, and received psychological treatment at the Vet Center in Bloomfield, New Jersey. He also stated that he attended group counseling sessions at the East Orange VA medical center. Accordingly, the Board finds that the evidence of record is inadequate to properly evaluate the service-connected PTSD; and that a new VA examination, with more contemporaneous medical findings, is needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Bilateral Hearing Loss and Tinnitus The Veteran contends that service connection for bilateral hearing loss and for tinnitus is warranted on the basis that he was exposed to excessive noise in active service in combat in Vietnam, serving as a light weapons infantryman. His service personnel records show participation in the Tet 69/Counteroffensive in Vietnam, and combat has been conceded. Service treatment records show complaints of left ear trouble in January 1970 when firing a weapon or when around loud noises, and that the Veteran felt something pull in his left ear at the time upon turning his head. The Veteran also reported having serious ringing in his ears since returning from Vietnam, and that his hearing had always been a problem. As noted above, he is competent to testify on factual matters of which he has first-hand knowledge. Washington, 19 Vet. App. at 368. Audiometric testing in active service at enlistment in October 1968 revealed that pure tone thresholds, in decibels, for each ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 - 15 LEFT 5 -5 -5 - 5 Audiometric testing at the time of the Veteran's separation examination in September 1971 revealed pure tone thresholds, in decibels, for each ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 VA audiometric test results in April 2009 reveal data most consistent with bilateral high frequency sensorineural hearing loss. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In April 2009, a VA audiologist opined that the Veteran's current hearing loss was not caused by or a result of his active duty military noise exposure. The audiologist reasoned that there were no complaints of hearing loss or tinnitus during both the enlistment and separation examinations; and that while service treatment records were positive for a recurrent earache in the left ear with resolution, there were no complaints of hearing loss or tinnitus during interim medical visits. As suggested above, it is very unclear whether the medical opinion of record included consideration of the Veteran's lay statements of onset in service, to include during combat in Vietnam and when firing a weapon or around loud noise. Given the high probability that the Veteran had significant in-service noise exposure as a light weapons infantryman in combat in Vietnam, an examination is needed to determine whether the Veteran's current bilateral hearing loss and tinnitus either had their onset during service or are related to his active service-to specifically include in-service noise exposure in combat in Vietnam and when firing a weapon or around loud noise, as noted in service treatment records; or if either disability is otherwise related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, make another attempt to obtain any of the Veteran's treatment records and/or summary of treatment since September 2007, from the Vet Center in Bloomfield, New Jersey, ensuring that the correct social security number is associated with the request. 2. Obtain the Veteran's VA treatment records for PTSD, for bilateral hearing loss, and for tinnitus that date from December 2009. Please associate all records with the paper claims folder or Virtual VA file. 3. After the above has been completed to the extent possible, accord the Veteran an appropriate VA examination, for evaluation of the service-connected PTSD. All appropriate tests should be conducted. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. All pertinent findings shown on evaluation should be noted in the examination report. In addition, the examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the Veteran's PTSD, and an explanation of the meaning of the score. In providing the above-noted findings, the examiner should, to the extent possible, distinguish the symptoms attributable to service-connected PTSD from those of other psychiatric conditions. However, if it is not medically possible to do so, the examiner should clearly so state, and indicate that the findings are with respect to the Veteran's overall psychiatric impairment. The examiner should render specific findings as to the impact of the service-connected PTSD on the Veteran's ability to work. These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule. It is important that the examiner furnish the requested data. 4. Afford the Veteran a VA audiology examination to identify all current disability underlying the Veteran's current complaints of tinnitus and bilateral hearing loss; and to obtain information as to the current nature and likely etiology of any current tinnitus and hearing loss of either ear. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically indicate whether the Veteran has tinnitus and currently has hearing loss in either ear to an extent recognized as a disability for VA purposes (i.e., has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of either ear or tinnitus had its onset in service, or is the result of disease or injury incurred or aggravated during service-to specifically include significant noise exposure in combat in Vietnam as a light weapons infantryman, or when firing a weapon or around loud noise, or as reported by the Veteran. If other causes are more likely, those should be noted. The examiner should reconcile any opinion with the service treatment records, any additional medical treatment records associated with the claims file, and the Veteran's lay statements. The examiner should provide a rationale for the opinions. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. 5. After ensuring that the requested action is completed, the RO or AMC should re-adjudicate the claims on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).