Citation Nr: 1313701 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-13 329A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Daniel Krasnegor, Esq. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from June 1967 to February 1969. This appeal initially came to the Board of Veterans' Appeals (Board) from a June 2007 rating decision. In March 2012, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In September 2012, the Court vacated the Board decision as to all issues, except for hypertension and tinnitus, and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues of an increased rating for PTSD and for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran's current bilateral hearing loss was the result of his military noise exposure. CONCLUSION OF LAW Criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is seeking service connection for bilateral hearing loss. As noted in a prior Board decision, military noise exposure has been conceded. 38 U.S.C.A. § 1154(a). Audiometric testing has established that the Veteran has bilateral hearing loss for VA purposes. Moreover, an audiologist has explained that the Veteran's pattern of hearing loss is consistent with noise exposure. In September 2010, a private audiologist opined that it was at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss was the result of his military noise exposure, which as noted has been conceded. In light of the JMR, and having reviewed the claims file, the Board finds that this opinion is sufficient to place the evidence for and against the Veteran's claim in relative equipoise. In such a case, the law dictates that reasonable doubt is to be resolved in the Veteran's favor. Further litigation in this mater servers no constructive purpose. As such, service connection for bilateral hearing loss is granted. Because the Board is granting the entirety of the benefit sought, a lengthy discussion will not be provided explaining the weighing of evidence. Moreover, in light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for bilateral hearing loss is granted. REMAND In this case, the Veteran's representative argued in March 2013 that the symptoms of his PTSD had worsened. Given that the last VA examination was in June 2009, and no VA treatment records have been obtained since 2008, the Board concludes that the evidence should no longer be considered contemporaneous; particularly in light of the fact that the Veteran has essentially asserted that his PTSD has become at the very least more symptomatic. As such, a remand is necessary to provide the Veteran with a contemporaneous examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Moreover, it has been alleged that the Veteran's PTSD has rendered him unemployable. As such, it is found that the claim for TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the TDIU claim is inextricably intertwined with the adjudication of the Veteran's increased rating claim for PTSD. As such, it too must be remanded. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any private (or VA) psychiatric he has received since August 2006. Then, obtain any outstanding treatment records that are not yet part of the claims file. If any identified records cannot be obtained, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any VA treatment records from October 2008 to the present (if any). 3. Then, after the requested development is completed, schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD. The examiner should review the claims file, examine the Veteran, and fully describe all psychiatric symptoms and manifestations exhibited by the Veteran; then discuss their impact on his social and occupational functioning. The examiner should also provide a Global Assessment of Functioning score. A complete rationale should be provided for any opinion expressed. The examiner should in particular review the April 2007 VA examination and the October 2010 private examination report, and should address whether the Veteran's psychiatric has increased in severity since August 2006, and if so, how. Finally, the examiner should provide an opinion as to whether the whether the Veteran's service-connected disabilities alone (PTSD, bilateral hearing loss, and tinnitus) are of sufficient severity to produce unemployability, both currently and at any time since August 2006. 4. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs