Citation Nr: 1314174 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-30 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for chloracne. 5. The propriety of the severance of service connection for bilateral hearing loss. 6. The propriety of the severance of service connection for tinnitus. 7. Entitlement to an increased initial rating for diabetes mellitus, currently evaluated as 20 percent disabling. 8. Entitlement to an increased rating for service-connected hearing loss. 9. Entitlement to earlier effective dates for the grants of service connection for peripheral neuropathy of the bilateral upper and lower extremities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) from May 2006, March 2007, May 2007, and January 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Veteran testified at a Travel Board hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. The documents in such file include VA treatment records that are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The Board further notes that additional evidence, including VA and private medical records and lay statements from the Veteran and his wife, has been associated with both the Veteran's physical and electronic claims file since the most recent adjudication of the issues on appeal in January 2008 and September 2008 statements of the case. Nevertheless, in March 2013, the Veteran's service representative submitted a waiver of AOJ review of that evidence. Therefore, remand to the AOJ is unnecessary for consideration of that evidence. Finally, during his September 2012 Board hearing, the Veteran asserted entitlement to an earlier effective date for the grant of service connection for diabetes mellitus, to include as due to clear and unmistakable error in the RO's rating decision effectuating that award. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to an increased rating for diabetes mellitus, service connection for skin, back, and neck disabilities, and earlier effective dates for peripheral neuropathy of the bilateral upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran is shown at least as likely as not to have PTSD due to events experienced in active military service. 2. There is no competent medical evidence that the Veteran's hearing loss is causally or etiologically related to his active service. 3. The grant of service connection for hearing loss was clearly and unmistakably erroneous, and the severance of service connection for hearing loss was proper. 4. The grant of service connection for tinnitus was not clearly and unmistakably erroneous, and the severance of service connection for tinnitus was improper. 5. During the pendency of the appeal for the claim for an initial compensable rating for bilateral hearing loss, service connection for bilateral hearing loss was severed, effective May 1, 2008, and the law prohibits a retroactive increase following termination of basic entitlement. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). 2. Restoration of service connection for hearing loss is denied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.303 (2012). 3. Restoration of service connection for tinnitus, effective May 1, 2008, is granted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.303 (2012). 4. Without reaching the merits of the claim for increase, the Veteran is not entitled to an initial compensable rating for bilateral hearing loss prior to the severance of service connection. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. At 121. In this decision, the Board grants service connection for PTSD and restores service connection for tinnitus. Accordingly, the awards below as to those issues constitute a full grant of the benefits sought. As such, no discussion of VA's duty to notify or assist is necessary with respect to those issues. Regarding the Veteran's claim for an increased initial rating for bilateral hearing loss, the Board finds that VCAA is not applicable, as there is no legal basis for the benefit sought. The VCAA is not applicable when no additional information or evidence could be obtained to substantiate the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). In any event, in January 2006 and August 2006 letters issued prior to the decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. That letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The issues on appeal were last readjudicated in January 2008 and September 2008. Additionally, there are specific particularized notice requirements which apply in a case where the issue is the propriety of severance of service connection, as set forth under 38 C.F.R. § 3.105(d). This includes the issuance of an initial rating decision proposing termination of benefits 60 days prior to a final decision, and the opportunity to present evidence and appear at a hearing during the pre-termination period. Those procedural safeguards are discussed in more detail below. However, regardless of the RO's compliance with these procedural requirements with respect to tinnitus, the Board is issuing a favorable decision on the merits below, effectively restoring service-connected compensation for tinnitus. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA medical records, private treatment records, VA examination reports, and hearing testimony. The Veteran was afforded a hearing before the undersigned in September 2012 during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the RO's prior determination that severed service connection for bilateral hearing loss. The VLJ asked specific questions directed at identifying the Veteran's hearing loss symptoms and noise exposure in service. Nevertheless, in his testimony, the Veteran demonstrated actual knowledge of the elements required for service connection by reporting that he had noise exposure in service, current hearing loss, and that an audiologist told him that Vietnam was the most likely cause for his hearing loss. The VLJ further sought to identify any pertinent evidence not currently associated with the claims, including relevant treatment pertaining to the Veteran's hearing loss. Moreover, the Veteran volunteered his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim(s), and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process by submitting evidence and argument, and testifying at a hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the Veteran's claims file and electronic VA claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the record shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Severance of Service Connection Once service connection has been granted, it will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous (the burden of proof being on the Government). See 38 C.F.R. § 3.105(d). See also Stallworth v. Nicholson, 20 Vet. App. 483 (2006). The severance of service connection based upon any standard less than that set forth in 38 C.F.R. § 3.105(d) is erroneous as a matter of law. Stallworth, supra; Graves v. Brown, 6 Vet. App. 166, 170 (1994); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Service connection for a disability, however, will not be severed if service connection has been in effect for 10 or more years except upon a showing that the original grant was based on fraud or it is shown from service records that the person concerned did not have the requisite service or character of discharge. See 38 U.S.C.A. § 1159 (West 2002); 38 C.F.R. § 3.957 (2012). In the Veteran's case, because the effective date of the grants of service connection for bilateral hearing loss and tinnitus was December 16, 2005, the awards have not been in effect for 10 or more years; thus, this provision pertaining to the protection of service connection is not applicable. "Clear and unmistakable error" is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The Court of Appeals for Veterans Claims has set forth a three-pronged test to determine whether CUE was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Russel v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, supra at 43-44. Although the same standards for determining whether there was CUE in a final decision apply when determining whether, for the purpose of severing service connection, there was CUE in a decision granting service connection, reviewable evidence in a severance claim is not limited to that which was before the RO in making its initial service connection award. In fact, 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). Relevant to the current determination, tinnitus (or ringing in the ears) is a condition that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran's lay statements regarding tinnitus during and since service, if found to be credible, are competent and sufficient to establish existence of the disability during service, regardless of the cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.303(b). Initially, the Board finds that the RO complied with its notification obligations under 38 C.F.R. § 3.105(d). When the RO proposed to sever service connection in July 2007, the Veteran was advised of the action by a July 2007 letter, which also informed him that he could submit evidence within 60 days of the proposed severance and included information on the Veteran's hearing rights. In response, the Veteran submitted additional argument, but did not request a hearing. While the July 2007 letter did not specifically inform the Veteran that a hearing must be requested in 30 days, the Board finds that such error is not prejudicial to the Veteran since he was informed of his right to a hearing but did not request one. See Shinseki v. Sanders, 129 S.Ct. 1696, 1705 (2009) (holding that, in cases of notice error, the burden is on the appellant to allege prejudice and explain how the asserted error caused harm); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d 908 (Fed.Cir.2000) (table). In short, the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(d). Accordingly, the remaining issue is whether the severances of service connection were in accordance with the applicable law and regulations. In May 2006, the RO granted service connection for hearing loss and tinnitus and assigned, respectively, noncompensable and 10 percent disability ratings, effective December 16, 2005. The evidence of record at the time of the May 2006 decision that granted service connection for hearing loss and tinnitus included the Veteran's service treatment records, which are negative for complaints or clinical findings related to tinnitus or hearing loss, and show bilateral hearing acuity within normal limits upon separation from service in May 1971. Notably, the Veteran affirmatively denied ear, nose, and throat trouble and hearing loss on his May 1971 separation examination. The evidence also included VA treatment records dated from May 2005 to December 2005, which are negative for complaints or clinical findings related to hearing loss or tinnitus. In June 2005, the Veteran offered no ear complaints on review of systems, and physical examination revealed normal tympanic membranes, bilaterally. The Veteran was afforded an April 2006 VA examination, during which he reported decreased hearing and bilateral, longstanding, constant ringing in his ears. However, he denied any previous hearing test except for hearing testing in service, and denied use of hearing aids. He reported past noise exposure in service through his duties as an aircraft mechanic with an aviation unit. He also reported occupational noise exposure as a carpenter in college, and recreational noise exposure from hunting, power tools, lawnmowers, a snowblower, with the use of hearing protection. Following audiometric testing, the examiner diagnosed moderate sensorineural hearing loss in the right ear at 3000 and 4000 Hertz, and mild sensorineural hearing loss in the left ear at 4000 Hertz. The examiner reviewed the claims file and noted the Veteran's in-service work with aircraft engines and found that it presented a risk for hearing loss related to excessive noise exposure. The examiner also noted the Veteran's pre- and post-service history of noise exposure as also presenting a risk for hearing loss related to exposure to excessive noise. It was further noted that the Veteran's bilateral hearing acuity was within normal limits both upon entrance and separation from service. Regarding tinnitus, the examiner noted the Veteran's report of longstanding tinnitus and stated that there is no subjective or objective way to prove or disprove the present or absence of tinnitus. However, the Veteran denied ear, nose, and throat problems during a May 1971 separation examination, and a report of tinnitus could not be found in the Veteran's service treatment records Based on the foregoing, the examiner found that "it is less as likely as not" that the Veteran's current hearing loss and tinnitus are related to military service. Evidence added to the record after the May 2006 rating decision but prior to the January 2008 severance included VA treatment notes dated from January 2006 to May 2007, which were also negative for complaints or clinical findings of hearing loss and tinnitus but, significantly, show the Veteran's report that he "currently works all day building a house." Thereafter, the RO issued a July 2007 rating decision proposing to sever service connection for hearing loss and tinnitus based on an apparent misreading of the April 2006 VA examiner's opinion in the prior decision. In response to the RO's severance proposal, the Veteran submitted an August 2007 written statement in which he asserted that following noise exposure from helicopters in service, his ears would ring for hours. He also asserted that he had never been exposed to the degree of noise as when he was in Vietnam, and that there was no explanation for his hearing loss or tinnitus other than his Vietnam noise exposure. With regard to the notations in the record that the Veteran was building a house, the Veteran stated that he was not actually building the house himself but instead, had hired a contractor. However, the Board notes that the Veteran consistently reported to VA providers that he was building the house, and in May 2006, the Veteran was treated for a hand injury from using a nail gun. Nevertheless, in his August 2007 statement, the Veteran indicated that he would get a second opinion from non-VA providers. However, no additional medical opinion evidence was submitted by the Veteran. In a January 2008 rating decision, based on the foregoing evidence, the RO severed service connection for hearing loss and tinnitus, making a determination that there was clear and unmistakable error in the May 2006 rating decision. Specifically, the RO noted that the April 2006 VA examiner's opinion was negative with respect to both hearing loss and tinnitus. Thereafter, additional VA and private treatment records were associated with the claims file. Notably, a June 2006 private treatment record documents a complaint of tinnitus on review of systems, and a May 2008 VA examination report notes the Veteran's complaint of tinnitus and diminished hearing. As discussed previously, the evidence must establish that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d). In other words, the evidence must be undebatable that the Veteran did not meet the criteria for an award of service connection for the disability. This is a much higher burden of proof than that which is necessary for simply denying a veteran's claim for service connection. In the latter case, all that is essentially required is that the evidence show that it is less likely than not that a veteran meets the service connection criteria (i.e., that the preponderance of the evidence is against the service connection claim). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). With respect to hearing loss, the Board finds that it is undebatable that the Veteran did not meet the criteria for service connection. The only pertinent and competent evidence of record is the April 2006 VA examination report in which the examiner unequivocally concluded based on a review of the record that the Veteran's hearing loss is less likely as not related to service. It appears that the RO, in error, read the April 2006 opinion to be a positive opinion and granted service connection for hearing loss. There was no other medical opinion evidence at the time of the initial decision or the severance that addressed the salient question of whether the Veteran's hearing loss is related to service. While the Veteran has, himself, attributed his hearing loss to noise exposure in service, there is no indication that he has specialized training in diagnosing audiological disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of sensorineural hearing loss requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Thus, his lay opinion as to the cause of his current hearing loss is not competent medical evidence. Nor has he submitted any positive medical opinion evidence in support of his claim. Indeed, while the Veteran testified during his September 2012 Board hearing that audiologists have told him that his hearing loss is related to noise exposure in service, he has not submitted any corroborating medical evidence. In this regard, the Veteran has on multiple occasions informed VA that he will be submitting additional opinion evidence in support of his claims but has failed to follow through. Moreover, while VA treatment notes dated in January 2011 and January 2012 note diagnoses of hearing loss, they do not relate the Veteran's hearing loss to service. Accordingly, since the grant was a clear error, service connection for hearing loss was properly severed, and service connection cannot be restored. In contrast, the Board has determined that the evidence is insufficient to make a finding that the May 2006 grant of service connection for tinnitus was clearly and unmistakably erroneous. Such grant of service connection was based on the April 2006 VA etiological opinion, which, again, the RO erroneously read to be a positive opinion. However, while the April 2006 VA examiner concluded based on a review of the record that the Veteran's tinnitus was not due to service, the record also contained competent lay statements from the Veteran that he experienced longstanding tinnitus and had in-service incurrence of ringing in the ears following significant noise exposure. During his September 2012 Board hearing, the Veteran testified that he experienced progressive ringing in the ears since service. As stated, ringing in the ears is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, even though the record contained a negative VA medical opinion at the time of the May 2006 rating decision, the record also contained the Veteran's competent lay statements regarding his tinnitus symptomatology, which were sufficient to establish existence of the disability during and since service, regardless of the cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.303(b). Although the Board acknowledges that service treatment records and post-service treatment records show relatively few complaints of tinnitus, the Veteran's lay assertions concerning tinnitus are consistent with the hazards of his military duties. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence). In light of the Veteran's competent lay statements regarding his tinnitus symptomatology, the foregoing cannot support a finding that the May 2006 grant of service connection for tinnitus was clearly and unmistakably erroneous. Thus, the Board finds that the severance of service connection for tinnitus was improper, and service connection for tinnitus is reestablished, effective May 1, 2008. In contrast, the Board finds that, as service connection for hearing loss was granted in error, and there is still no competent and credible evidence to substantiate such a grant of service connection for hearing loss, his appeal on this issue must be denied. Service Connection for PTSD Establishing service connection specifically for the psychiatric disability of PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the Veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressor(s) is related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to the actual occurrence, and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with his circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); Doran v. Brown, 6 Vet. App. 283, 289 (1994); 38 C.F.R. § 3.304(d)(f). During the pendency of this claim, effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 38 C.F.R. § 3.304(f)(3). The amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." See 38 C.F.R. § 3.304(f)(3). The Veteran is already service connected for a depressive disorder secondary to service-connected physical disabilities. He asserts that he also suffers from PTSD as a result of his military experiences in Vietnam and should, therefore, be awarded service connection for PTSD in addition to his depressive disorder. The Veteran's service personnel records confirm that he served in Vietnam from May 1969 to April 1970. Additionally, those records show that the Veteran served during that time as an aviation communications equipment repairman. Post service records show that in January 2010, the Veteran was referred to VA mental health due to problems with anger and mood. He reported his assignment with avionics while in service and that he served in Vietnam from 1969 to 1970. He reported that in service he worked on aerial reconnaissance aircraft and occasionally flew. He also reportedly took opportunities to fly with assault helicopters during which time he manned, but did not fire, machine guns. However, he did report that during service he was subjected to rocket fire and witnessed dead bodies coming to the mortuary. Based on an interview with the Veteran, a VA psychiatrist diagnosed PTSD and Major Depressive Disorder. The psychiatrist noted that the Veteran had exacerbation of prominent hyperarousal after deterioration in his health. Thereafter, VA treatment records dated through April 2012 show a continuing diagnosis of PTSD made by a VA psychiatrist and based on the Veteran's reported Vietnam experiences. Thus, there is medical evidence of a current diagnosis of PTSD made by a VA psychiatrist that is based on the Veteran's reported exposure to hostile situations in Vietnam (as evidenced by his reports of rocket fire and riding on assault helicopters), and the Board finds that the Veteran's general reports of exposure are consistent with fear of hostile military or terrorist activity. Therefore, resolving doubt in favor of the Veteran, the Board finds that service connection for PTSD is granted based solely on the new provisions of 3.304(f), as the Veteran's allegations of participation in actual combat have not been verified. In reaching this decision, the Board notes that August 2008, May 2010, November 2010, and June 2011 VA examiners did not diagnose the Veteran to have PTSD. Significantly, however, those examinations were not for the purpose of evaluating PTSD, but instead, for evaluating depression and cognitive symptoms secondary to physical conditions. Even further, based on the Veteran's reports pertaining to combat exposure during service, the August 2008 examiner noted PTSD symptoms, and the November 2010 VA examiner diagnosed rule-out PTSD. The May 2010 examiner acknowledged the Veteran's diagnosis of PTSD in the record and specifically excluded its consideration as not relevant to the purpose of the examination, but did not otherwise indicate that the diagnosis was not warranted. While such medical evidence is not entirely supportive of the Veteran's claim, the totality of the evidence need not preponderate in favor of a claim in order to warrant an award of benefits. Rather, the evidence must preponderate against the claim to deny it. Where the evidence is equally balanced, the benefit of the doubt is given to the Veteran. Here, given the ongoing diagnosis of PTSD made by a VA psychiatrist, initially diagnosed in January 2010, that was based on the Veteran's report of exposure to combat situations in service, it cannot be reasonably concluded that the evidence preponderates against the claim. Accordingly, with the resolution of reasonable doubt in favor of the Veteran, service connection for PSTD is granted. Increased Rating Service connection for bilateral hearing loss was granted in a May 2006 rating decision, and the Veteran has appealed the initial noncompensable disability rating assigned. While the appeal was pending, in a January 2008 rating decision, the RO severed service connection for bilateral hearing loss, effective May 1, 2008. In this decision, the Board has found that there was clear and unmistakable error in the May 2006 grant of service connection for hearing loss and has declined to restore service connection for that disability. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1) (2012). Severance of service connection for bilateral hearing loss has been completed. Thus, there is no legal basis for the award of a higher initial rating for hearing loss. Absent any basis in law for the benefit sought, the appeal is denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under law). ORDER Service connection for PTSD is granted. The severance of service connection for hearing loss was proper, and the appeal for restoration of service connection for hearing loss is denied. As the severance of service connection for tinnitus was improper, service connection for such disability is restored, effective May 1, 2008. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claims for service connection for a lumbar spine disability, a cervical spine disability, and skin disability (claimed as chloracne), and the claim for an increased rating for diabetes mellitus. Regarding the increased rating claim, the Veteran was last afforded a VA examination for diabetes mellitus in April 2007, approximately six years ago. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Subsequent VA treatment records show continued treatment for diabetes, including changes to the Veteran's insulin regimen. Furthermore, VA treatment notes dated after April 2007 reference possible hypoglycemic episodes and in August 2008, a VA physician recommended that the Veteran reduce his activities due to a number of factors, one of which may relate to the Veteran's diabetes. More recently, a July 2011 general medical examiner noted that the Veteran will get frequent hypoglycemic episodes. Because there may have been a change in the Veteran's diabetes, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). With regard to the skin service connection claim, the Board notes that the Veteran reported a history of acne during his May 1968 entrance examination. However, clinical evaluation of the skin was within normal limits. Thereafter, service treatment records show treatment for a rash in July 1969 and acne vulgaris in January 1970. Post-service VA medical records show dermatological complaints to include occasional pustules on the face and arms. During May 2005 VA treatment, the Veteran reported that he had acne following his return from Vietnam, but that it had improved. Thereafter, he testified before the Board in September 2012 that his current skin problems, which appeared to him to be chloracne, began in service. Given the evidence outlined above for a skin disorder, the Veteran should now be afforded a VA skin examination to determine the nature of any current skin disability and obtain an opinion as to whether his current skin disability arose during service or is otherwise related to any incident of service, including treatment for a rash or acne vulgaris therein or Agent Orange exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Next, the Board also finds that remand is necessary for a new VA spine examination to address whether it is at least as likely as not that the Veteran has current cervical and lumbar spine disabilities that are related to service. The Board notes that the Veteran reported a history of a back injury during his May 1968 entrance examination. He further indicated treatment within the past five years for his back trouble. However, no back residuals were noted, and clinical evaluation of the back was within normal limits at that time. Thereafter, service treatment records dated in January 1969 and February 1969 reference a history of intermittent upper back pain and lower back pain with pain into the right leg. Post-service VA and private medical records dated from May 2005 to June 2012 show periodic treatment for low back pain and diagnoses of degenerative disc disease in the cervical and lumbar spine. The Veteran testified before the Board in September 2012 that he injured both his neck and back in service, but did not really complain. He also reported that he was treated by an orthopedic doctor shortly after his separation from service, though he could not recall the name of the physician. Although the Veteran was previously afforded a VA spine examination in January 2007 that addressed his lumbar and cervical spine disabilities, the Board finds that a new spine examination should be obtained in light of the significant evidence associated with the claims file subsequent to that VA examination. That additional evidence includes VA treatment records dated after January 2007 showing complaints of chronic intermittent low back pain, a report of a 30 year history of back pain, as well as additional diagnoses of lumbar strain with sciatica, lumbar radiculopathy, and stenosis. Furthermore, while the January 2007 VA examiner diagnosed degenerative disc disease in the lumbar spine consistent with wear and tear, a September 2007, an MRI of the lumbar spine revealed a right-sided disc bulge that may be mildly impinging the right L5 nerve root. In this regard, the Board notes that more recent treatment records show complaints that the Veteran's back locks and that his low back pain radiates to the right lower extremity. Similarly, service treatment records show a January 1969 complaint of the low back "catching" and producing pain into the right leg. Accordingly, the Board finds that remand is necessary for new VA opinions that consider all of the evidence of record. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). It appears that the Veteran primarily receives VA treatment for his disabilities on appeal, however no records dated after June 2012 have been associated with the physical or electronic claims file. Further, December 2007 VA treatment note references a referral to a private endocrinologist for diabetes mellitus. Additionally, the Veteran testified during his September 2012 hearing that he sought treatment for his back and neck soon after leaving service, but could not recall the name of the provider during the hearing. Nevertheless, the Veteran should be provided with the opportunity to locate the name of the provider and submit an authorization for the release of records pertaining to that treatment, or submit those records himself. With regard to entitlement to earlier effective dates for the grants of service connection for peripheral neuropathy of the bilateral upper and lower extremities, a January 2012 rating decision granted service connection for such disabilities. During a September 2012 Board hearing, the Veteran expressed his disagreement with the effective dates assigned for those disabilities in the January 2012 rating decision. A transcript of the hearing is of record. Because the Veteran's contentions offered during his September 2012 hearing were later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as his notice of disagreement to the January 2012 rating decision as to the effective dates assigned for the grants of service connection for peripheral neuropathy of the bilateral upper and lower extremities. See Tomlin v. Brown, 5 Vet. App. 355 (1993); see 38 C.F.R. § 20.201 (2012). To date, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to the issues of entitlement to earlier effective dates for the grants of service connection for peripheral neuropathy of the bilateral upper and lower extremities. Accordingly, the Board is required to remand this issue to the RO/AMC for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO/AMC has issued the statement of the case, the issues should be returned to the Board only if the Veteran perfects an appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his diabetes mellitus, low back, neck, and skin, to specifically include the orthopedist that treated his back and neck soon after service, and the private endocrinologist who recently treated him. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain relevant ongoing VA treatment records dating since June 2012 from the VA Medical Center in Togus, Maine. 2. Schedule the Veteran for a VA diabetes mellitus examination to address the severity of his service-connected diabetes mellitus. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. 3. Schedule the Veteran for a VA dermatological examination to obtain a medical opinion as to whether he currently suffers from a skin disorder that is possibly related to his period of service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should diagnose any current skin disorder and respond to the following: a. Did the Veteran have a skin disability that clearly existed prior to service? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. b. If so, did that pre-existing skin disability undergo a permanent worsening during service? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. c. If so, was that worsening clearly the result of natural progression of the pre-existing skin disability? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. d. If the examiner determines that a pre-existing skin disability was worsened beyond normal progression (aggravated) by service, then the examiner should opine whether a current skin disability is related to the in-service aggravation. Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. e. Is there any current skin disability that arose during service or is related to an event in service, to include Agent Orange exposure, that is unrelated to a preexisting skin disability? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. 4. Schedule the Veteran for a VA spine examination to obtain a medical opinion as to whether his current low back and neck disabilities are possibly related to his period of service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) a current low back or neck disability arose during service or is otherwise related to any incident of service. The examiner should explain the medical basis for the conclusions reached a. Did the Veteran have a back disability that clearly existed prior to service? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. b. If so, did that pre-existing back disability undergo a permanent worsening during service? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. c. If so, was that worsening clearly the result of natural progression of the pre-existing back disability? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. d. If the examiner determines that a pre-existing back disability was worsened beyond normal progression (aggravated) by service, then the examiner should opine whether a current back disability is related to the in-service aggravation. Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. e. Is there any current back disability or neck disability that arose during service or is related to an event in service, that is unrelated to a preexisting back disability? Please explain the reasoning for the opinion provided, to include discussion of relevant evidence supporting the conclusion. 5. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. Thereafter, readjudicate the claims for service connection for a lumbar spine disability, a cervical spine disability, and skin disability, and the claim for an increased rating for diabetes mellitus. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The issue(s) should then be returned to the Board for further appellate consideration, if in order. 6. Issue a statement of the case pertaining to the issues of entitlement to earlier effective dates for the grants of service connection for peripheral neuropathy of the bilateral upper and lower extremities, so that the Veteran may have the opportunity to complete an appeal on those issues (if he so desires) by filing a timely substantive appeal. The issues should only be returned to the Board if a timely substantive appeal is filed. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs