Citation Nr: 1310783 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-00 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to service-connected hearing loss. 2. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Pursuant to the March 2011 formal appeal (VA Form 9), the Veteran was scheduled for a hearing before a Veterans Law Judge in January 2013. The Veteran failed to report for his scheduled hearing. The request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for residuals of a groin injury been raised by the record (see private opinion, March 15, 2002), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an initial evaluation in excess of 50 percent for PTSD addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is currently service-connected for bilateral hearing loss. 2. The Veteran's combat status has been confirmed by the RO. 3. In-service acoustic trauma has been confirmed by the RO. CONCLUSION OF LAW Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for entitlement service connection for tinnitus is granted herein. As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. Service Connection In this case, the Veteran has claimed that his current diagnosis of tinnitus is either etiologically-related to his period of active service, or secondary to his now-service-connected hearing loss. Specifically, he contends that, during his verified combat service (see Rating Decision, December 2009) in WWII, he was exposed to acoustic trauma from ammunition without the benefit of hearing protection (see Decision Review Officer Hearing, June 2010). To establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). At the outset, the Board notes that the Veteran has a current diagnosis of tinnitus. See VA examination report, March 2011. Thus, element (1) of Hickson has been satisfied, in that the Veteran has demonstrated that he has current diagnoses for his claimed disorder. Turning to the question of in-service disease or injury, the Board notes that the Veteran's service treatment records are unavailable for review, and presumably destroyed in a fire. In situations such as these, there is a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Post-service, a VA audiology consult from April 2008 indicated that the Veteran reported intermittent tinnitus for the prior five years. He was afforded a VA/QTC examination in October 2009. At that time, the Veteran reported that his tinnitus started "at least 20 years ago." An additional VA/QTC examination, conducted in July 2010, noted that the Veteran was in an infantry unit during WWII for at least one year, where he was exposed to rifles, machine guns, 105 Howitzers, and "burp guns" with no hearing protection. The Veteran reported that he has experienced tinnitus upon separation from service. However, the examiner provided a negative opinion, apparently due to the fact that there was an irregularity in the reporting of the Veteran's onset date. No other rationale was provided, however, to include whether tinnitus was caused or aggravated by his service-connected hearing loss. The most recent VA/QTC opinion was provided in March 2011, though the Veteran was not re-tested at that time. The examiner opined that bilateral tinnitus was not at least as likely as not caused by, or a result of, military service based upon a delay in onset. Again, the examiner used the Veteran's varied statements as to the onset of tinnitus to bolster that opinion, as well as post-service noise exposure and current medical conditions, to include high blood pressure, high cholesterol, diabetes, and the occasional ear infection. However, no rationale was provided to explain how any of these medical conditions may have contributed to tinnitus in any way. Moreover, the examiner did not elaborate as to which post-service occupation may have resulted in the Veteran's claimed condition. The Veteran had reported in July 2010 that he worked for 30 years as a steelworker, with "some noise." Turning to lay evidence now of record, the Veteran is competent to report in-service symptomatology, such as buzzing in the ears, from his period of service to the present. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the Veteran's reports that he has experienced tinnitus since separation from service may serve to support his claim for service connection. The Veteran, even as a lay person, can attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Although lay persons are not competent to opine as to medical etiology or render medical opinions, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Barr v. Nicholson; see also Grover v. West, 12 Vet. App. 109, 112 (1999); Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Here, while the Veteran has provided differing statements as to the onset of his bilateral tinnitus, during the most recent VA examination of record he reported that ringing in the ears had been present since service. His statements are certainly commensurate with the circumstances of his service during WWII, and the fact that he is service-connected for bilateral hearing loss also serves to support his contentions. The Board notes that there is no supporting medical evidence establishing a nexus between the Veteran's complaints of continuous symptoms and his current tinnitus diagnosis. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). In fact, the only examinations of record resulted in negative etiological opinions. Nonetheless, as noted above, this is a claim involving inherent subjectivity, and as such the Veteran is competent to ascertain the date of onset. While VA could undertake additional development to clarify the etiology of the Veteran's tinnitus diagnosis, based on the Veteran's competent and credible testimony, the inherently subjective nature of audiological symptomatology, and his confirmed exposure to combat and acoustic trauma in service, the Board affords the Veteran all reasonable doubt and finds that at the very least, there exists an approximate balance of evidence for and against the Veteran's tinnitus claim. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board regrets any further delay in adjudicating the Veteran's increased rating claim. However, pursuant to the duty to assist, the appeal must be remanded for further development. The Veteran was last afforded a comprehensive VA examination for his claim for an increased rating for PTSD in July 2010. At that time, his global assessment of functioning (GAF) score was 51, noted by the examiner to be "moderate." Since that time, the Veteran's representative indicated in a February 2013 Brief that PTSD symptomatology had increased in the 31 months since that interview was conducted. VA's "duty to assist" requires a "thorough and contemporaneous medical examination" that is sufficient to ascertain the current level of disability. Floyd v. Brown, 9 Vet. App. 88, 93 (1995). As such, the claim on appeal must be remanded for a current, pertinent VA examination to provide findings that are consistent with applicable rating criteria, to include all necessary testing. The medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed decision. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should schedule the Veteran for a VA psychiatric examination to determine the current level of severity of his service-connected PTSD. The claims folder must be made available to the examiner for review before the examination. Detailed clinical findings should be reported in connection with the evaluation. The examiner should report a full multiaxial diagnosis, to include the assignment of a GAF score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) and an explanation as to what the assigned score represents. 2. After completing the above action and any other development as may be indicated by any response received as a consequence of the action taken in the paragraph above, the RO/AMC should readjudicate the claim. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs