Citation Nr: 1315413 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-04 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a psychiatric disorder to include post traumatic stress disorder (PTSD), dysthymic disorder, and adjustment disorder. 4. Entitlement to service connection for a neck disorder. 5. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by which the Regional Office (RO) in Portland, Oregon, denied service connection for hearing loss, tinnitus, PTSD, a neck disability, and a back disability. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is associated with the Veteran's claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Regarding the claim for service connection for PTSD, the Board notes that the RO adjudicated the matter on appeal solely as a claim for service connection for PTSD. However, as reflected on the title page, consistent with case law, the Board considers the appeal as encompassing not just PTSD, but other diagnosed psychiatric disorders reflected in the record to include dysthymic disorder and adjustment disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, consistent with Clemons, and the current record, the Board has recharacterized the claim on appeal as reflected on the title page. The issue of service connection for a psychiatric disorder to include PTSD, dysthymic disorder, and adjustment disorder 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. FINDINGS OF FACT 1. The Veteran is shown to have served in the Republic of Vietnam during the Vietnam era and he did not engage in combat with the enemy. 2. The Veteran was exposed to loud noise (acoustic trauma) while in service. 3. The Veteran does not have current left ear hearing loss to an extent recognized as a disability for VA purposes. 4. The Veteran currently has right ear sensorineural hearing loss to an extent recognized as a disability for VA purposes. 5. Symptoms of right ear hearing loss were chronic in service and have been continuous since service separation. 6. The Veteran's current right ear sensorineural hearing loss disability is related to exposure to acoustic trauma in service. 7. Symptoms of tinnitus first began in service and have been recurrent since service separation. 8. The Veteran's current tinnitus is related to exposure to acoustic trauma in service. 9. On March 27, 2013, prior to the promulgation of a decision by the Board, at the hearing before the Board, the Veteran indicated that he was withdrawing his appeal as to the claims for service connection for a neck disability and a back disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for right ear sensorineural hearing loss are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for the establishment of service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for the withdrawal of the Substantive Appeal as to the claims for entitlement to service connection for a neck disability and a back disability are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify under the VCAA. The RO provided VCAA notice letters to the Veteran in March 2006 and March 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection. Additionally, the March 2009 letter provided him with the general criteria for the assignment of an effective date and initial rating. The Veteran's claims were readjudicated in supplemental statements of the case dated in December 2009 and October 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In May 2006, the Veteran informed VA that he had no additional evidence or information to submit in support of his claims. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. VA treatment records and private medical records and private medical opinions are associated with the claims folder. The Veteran underwent an audiometric examination contracted by VA in November 2006 to obtain medical evidence as to the nature and likely etiology of the claimed hearing loss and tinnitus. The examination was adequate because it was performed by a licensed audiologist and it was based on a review of claims file and a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The audiologist offered opinions, and provided a rationale for the opinion provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Regarding the March 2013 Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012), requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2013 Board hearing, the VLJ specifically noted the issues on appeal. The VLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Therefore, the VLJ substantially complied with the requirements of Bryant. For these reasons, the Board finds that the duties to notify and assist the Veteran in the claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 2. Service Connection Pertinent Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, sensorineural hearing loss is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d). Although 38 U.S.C.A. § 1154 (b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected, it does considerably lighten the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in or aggravated by combat service. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (1999). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he incurred bilateral hearing loss and tinnitus as a result of noise exposure during service while performing his duties serving aboard the USS Catskill (MSC-1), a mine sweeping cruiser. He testified that he was exposed to loud noise from gunnery practice and noise from a .50 caliber machine gun at close range. The Board finds that there is not sufficient evidence to establish that the Veteran is a combat veteran. The service records do not show any award of a medal indicative of combat. Thus, the Veteran is not entitled to the application of 38 U.S.C.A. § 1154 (b). However, the Veteran is competent to describe being exposed to loud noise, such as that caused by machine guns. He is competent to describe observable symptoms such as decreased hearing and ringing in the ears. A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are found to be credible as they have been consistent and are confirmed by the circumstances of his service, including his service with the Navy. For this reason, the in-service injury of acoustic trauma to both ears is established. The Board next finds that the Veteran has a sensorineural hearing loss "disability" of in the right ear that meets the criteria of 38 C.F.R. § 3.385, but the sensorineural hearing loss in the left ear does not meet this criteria. Regarding current disability in the right ear, a November 2006 private audiological examination report contracted by VA indicates that puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 40, 30, 30, 25, and 25 decibels, respectively. The diagnosis was mild sensorineural hearing loss in the right ear. The Board finds that the weight of the competent and credible evidence establishes that the Veteran does not have current left ear hearing loss as defined by 38 C.F.R. § 3.385. The criteria set forth in § 3.385 are not met with respect to hearing impairment of the left ear for VA purposes. The November 2006 audiometric examination report indicates that the Veteran does not have an auditory threshold of 40 decibels or greater for any of the designated frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. He does not have at least three auditory thresholds of 26 decibels or greater for the designated frequencies. He also does not have a speech recognition score using the Maryland CNC Test of less than 94 percent. Maryland CNC word list test was 100 percent in the left ear. The diagnosis was hearing within normal range for the left ear. The weight of the competent and credible evidence shows that the Veteran does not currently have left ear hearing loss that meets the criteria of 38 C.F.R. § 3.385. The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. The evidence reflects that the Veteran does not have current left ear hearing loss as defined by VA standards. For hearing loss to exist as a current disability, the provisions of 38 C.F.R. § 3.385 must be met. See Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009); Hensley, 5 Vet. App. at 158. In the absence of proof of current disability, the claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Because the weight of the evidence shows that the left ear hearing loss does not meet the criteria under 38 C.F.R. § 3.385, the aspect of the claim of service connection for left ear hearing loss must be denied. With regard to right ear hearing loss disability, the Board finds that the Veteran experienced "chronic" symptoms of right ear hearing loss during service and continuous symptoms of hearing loss since service so as to warrant presumptive service connection for right ear (sensorineural) hearing loss disability under the provisions of 38 C.F.R. § 3.303(b). Audiometric evaluation was conducted on enlistment examination in September 1968. On audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 0, 0, 0, and 0 decibels, respectively. Audiometric evaluation was not performed upon separation examination in November 1970. Whispered voice testing was conducted and was 15/15 in the right ear. Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), 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, 5 Vet. App. at 159. The Board finds that the Veteran experienced "chronic" symptoms of hearing loss in the right ear during service and since service so as to warrant presumptive service connection for right ear sensorineural hearing loss disability under the provisions of 38 C.F.R. § 3.303(b). The Board also finds that symptoms of right ear hearing loss have been continuous since service separation, which also is a basis for a grant of presumptive service connection under 38 C.F.R. § 3.303(b). The Veteran reported having hearing loss that began in service with exposure to gunfire and machine gun fire upon audiological examination in November 2006 and at the hearing before the Board in March 2013. At the hearing before the Board in March 2013, he reported hearing loss symptoms in the right ear that began in service and have continued since service. The Veteran is competent to report observable symptoms such as decreased hearing. See Jandreau, 492 F.3d at 1377. The evidence demonstrates that the Veteran had chronic symptoms of hearing loss in service and since service separation. The Board has considered the opinion regarding the etiology of hearing loss in the November 2006 examination but finds that it has limited probative value. The examiner stated that pure tone hearing loss do not appear consistent with his one-year history of military noise exposure. It was also indicated that the significant asymmetry between the right and left ear hearing loss and the decreased low frequency thresholds in the right ear are not consistent with noise induced etiology. The examiner then concluded that hearing loss was more likely than not the result of non-military contributory factors include civilian noise exposures. The examiner acknowledged that there was noise exposure in service and after service but did not provide an rationale for why it was concluded that noise exposure in service was not likely the cause of hearing loss or why the noise exposure after service was the more likely cause of hearing loss. In addition, the examiner did not address the Veteran's lay statements regarding symptoms in service and after service. The Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current right ear sensorineural hearing loss disability is related to exposure to acoustic trauma in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for right ear sensorineural hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The claim of service connection for right ear sensorineural hearing loss is granted. The Board further finds that the evidence is in equipoise on the question of whether the Veteran's current tinnitus is related to exposure to acoustic trauma in service. At the hearing before the Board in March 2013, the Veteran indicated that during gunnery practice, he had to be at his battle station on the main deck. The Veteran indicated that when they fired several rounds, it made his ears ring. He stated that subsequently, he started to have ringing in his ears. He stated that he has had ringing in the ears intermittently ever since and he still experiences tinnitus. The November 2006 audiometric evaluation report indicates that the Veteran reported having periodic ringing in the ears since being exposed to gunfire in service. The Board notes that the Veteran is competent to describe being exposed to loud noise, such as that caused by weapons or guns. He is competent to describe observable symptoms such as ringing in the ears. A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The service treatment records do not document any complaints or findings referable to tinnitus. Audiological evaluation was not performed at separation examination in November 1970. However, on this record, the Board finds that the Veteran's statements regarding the noise exposure in service and experiencing tinnitus symptoms in service and since service to be competent and credible. The Board finds that the Veteran's statements to be sufficient proof of this in-service injury and recurrent symptoms. The Veteran's lay statements are found to be credible as they have been consistent and are confirmed by the circumstances of his service, including his service aboard the USS Catskill. There is competent evidence that the Veteran has current tinnitus. Tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). And, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). At the November 2006 audiological examination and at the hearing before the Board in March 2013, the Veteran indicated that the ringing in his ears began during service in Vietnam and recurred since then. He stated that he still experienced the ringing in the ears. The Board finds that this is competent evidence of a current diagnosis of tinnitus. The November 2006 examiner indicated that tinnitus was more likely a result of non-military contributory factors such as genetic predisposition for hearing loss, aging and civilian noise exposures. As noted above, the examiner conceded that there was noise exposure in service and did not provide a rational for why the post-service noise exposure was found to be a contributing factor for tinnitus and not the in-service noise exposure. In addition, the examiner did not address the lay statement of in-service symptoms of tinnitus and symptoms since service. As such, the Board finds that the November 2006 opinion regarding tinnitus is of limited probative value. The Board finds that there is competent and credible evidence that the Veteran's tinnitus first began in service, has been recurrent since service, and still exists. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Based on a careful review of the entire record, the Board finds the evidence is in equipoise as to whether the current tinnitus as likely as not is due to the Veteran's exposure to excessive noise levels that began during his period of active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 3. Withdrawn Appeals The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.101 (2012). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On March 27, 2013, on the record at a hearing before the Board and prior to the promulgation of a decision by the Board, the Veteran and his representative withdrew the appeal as to the claims for service connection for neck and back disabilities. As the Veteran has withdrawn these issues, there is no allegation of error of fact or law remaining for appellate consideration at this time. The appeal is dismissed. ORDER Service connection for left ear hearing loss is denied. Service connection for right ear sensorineural hearing loss is granted. Service connection for tinnitus is granted. The appeal of the claims for service connection for neck and back disabilities are dismissed. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran asserts that he has PTSD related to a fear of hostile or terrorist activity during his service in Vietnam. A February 2012 VA psychiatric examination report shows a diagnosis of dysthymic disorder. A diagnosis of PTSD was not made. A July 2011 VA psychiatric examination report indicates that the Veteran did not meet the formal diagnostic criteria for PTSD. The diagnosis was dysthymia. However, the Veteran submitted a report of a psychological assessment by a private psychologist and a clinician dated in February 2013. The Axis I diagnoses were PTSD, adjustment disorder with mixed anxiety and depressed mood, and cognitive disorder not otherwise specified. The diagnosis of PTSD was related to the Veteran's traumatic events during service. The report noted that the symptoms of PTSD in some individuals have been shown to wax and wane and this may have been the case for the Veteran and may explain why previous examinations have not found sufficient symptomatology for a PTSD diagnosis. The Board finds that in light of the private psychological assessment dated in February 2013 which shows a diagnosis of PTSD, the Veteran should be afforded another VA psychiatric examination to determine whether the Veteran meets the diagnostic criteria for PTSD due to a specific event that meets the requirements of a traumatic event in accordance with DSM-IV. Also, the medical evidence also shows diagnoses of dysthymic disorder, adjustment disorder with mixed anxiety and depressed mood, and cognitive disorder not otherwise specified. A medical opinion is needed as to whether these disorders are related to an event in active service. The Veteran should be afforded an opportunity to submit additional medical records that tend to relate the onset of any acquired psychiatric disorder to his period of active service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The RO must contact the Veteran in order to have him provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA and non-VA records showing treatment of the claimed psychiatric disorder. The RO should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. The Veteran also should be informed that he may submit evidence to support his claim including any evidence of in-service treatment for his claimed disability. Accordingly, the case is REMANDED to the RO for the following action: 1. Contact the Veteran in order to obtain all VA and non-VA medical records referable to his treatment of any psychiatric disorder. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature and likely etiology of the PTSD or any other psychiatric disorder. The claims folder, including a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests and evaluations deemed necessary should be performed. The examiner should report all current DSM-IV diagnoses. A diagnosis of PTSD under DSM IV criteria should be made or definitively ruled out. If a diagnosis of PTSD is rendered based on examination, the VA examiner must identify a specific in-service stressor that was sufficient to meet the diagnostic criteria. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. The examiner should comment on the February 2013 psychological assessment by the Pacific Psychology Clinic. The VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any other psychiatric disability had its clinical onset during the Veteran's period of active service or is related to incident or event in service. The examiner should indicate whether a post-service event or incident caused any current psychiatric disorder. The examiner should provide a complete rationale for any opinion rendered. If the examiner concludes that an opinion cannot be provided without result to speculation, the examiner must provide a rationale for this conclusion and should state whether the inability to provide an opinion is due to a need for further information, with the needed information identified, or because the limits of medical knowledge have been exhausted. 3. Following completion of all indicated development, readjudicate the claim for service connection for a psychiatric disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an appropriate time to respond thereto. 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. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs