Citation Nr: 1321916	
Decision Date: 07/09/13    Archive Date: 07/18/13

DOCKET NO.  10-08 325	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 15, 2012.  

3.  Entitlement to an initial disability rating in excess of 70 percent for PTSD since November 15, 2012.  

REPRESENTATION

Appellant represented by:	African American PTSD Association


ATTORNEY FOR THE BOARD

S. Coyle, Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to October 1969. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The rating claim has been recharacterized to comport with the evidence of record.  

The Veteran requested a hearing before the Board in January 2010; however, he withdrew that request in correspondence dated in August 2011.

In October 2012, the Board remanded these issues to the agency of original jurisdiction (AOJ) for further evidentiary development.   At the time, the issues on appeal included service connection for a bilateral foot disorder, a bilateral knee disorder, and a skin disorder.  These appeals were granted by an April 2013 rating decision.  Thus, the Board no longer has jurisdiction over them.  

During the pendency of the appeal, the AOJ awarded an increased evaluation for the service-connected PTSD from 30 percent to 50 percent, effective February 17, 2006, and from 50 percent to 70 percent, effective November 15, 2012.  A claimant is generally presumed to be seeking the maximum benefit allowed by law or regulations.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal.  Id.  Thus, the issues remain in appellate status.

The Veteran has submitted a September 2012 statement from a VA treatment provider, linking bilateral shoulder disabilities to service.  Additionally, a December 2012 VA audiological examination found that the Veteran has bilateral hearing loss that is related to his service.  Claims of entitlement to service connection for hearing loss right and left shoulder disorders are thus raised by the evidence of record.  

Additionally, the October 2012 remand referred an issue of entitlement to service connection for a bilateral ankle disorder to the AOJ, which has not been adjudicated.  These unadjudicated claims are referred to the AOJ for disposition.  

The rating claims 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.


FINDING OF FACT

The Veteran does not have tinnitus that is attributable to active military service.  


CONCLUSION OF LAW

The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.   

An undated letter sent to the Veteran prior to the initial adjudication of his claim satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  A March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records, as well as VA and non-VA medical treatment records, have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  There is no indication that he receives Social Security disability benefits.   The most recent VA audiological examination reflects a thorough review of the evidence, including the history of noise exposure during service and the Veteran's assertions as to the nature of his symptoms.  The examiner appropriately stated the medical probabilities that the Veteran's tinnitus was related to his active service, and provided adequate rationale for her findings.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Thus, it is sufficient for purposes of determining entitlement to service connection, and complied with the Board's October 2012 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

There is no indication that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 



Analysis

Service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.   § 3.303(d).  

There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury.  Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999).

A claimant is competent to diagnose tinnitus because of its unique and readily identifiable features, namely ringing in the ears, are capable of lay observation.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  No evidence contradicts the Veteran's assertions as to the presence of tinnitus.  Thus, his statements are sufficient to establish a current disability.

The Veteran's separation document reflects combat service in Vietnam.  His military occupational specialty was "light weapons infantry."  He has described exposure to both light and heavy weapons fire during his Vietnam service.  Exposure to damaging noise during service is therefore presumed.  38 C.F.R. § 1154(a).  

Service treatment records from the Veteran's period of active duty are negative for reports of tinnitus, as are all examinations from his subsequent service with the Illinois Army National Guard.

The Veteran underwent a VA audiological examination in September 2006.  The examination report reflects "no complaints of tinnitus."  

In his June 2007 notice of disagreement, the Veteran disputed the September 2006 examination report, asserting that the examiner never asked him about tinnitus, only hearing loss.  

During a VA audiological consult in August 2009, the Veteran described his tinnitus symptoms as an occasional "hissing sound in his left ear."  Tinnitus was not diagnosed.  

During a December 2012 VA audiological examination, the Veteran reported recurrent tinnitus which had begun "15 to 20 years ago."  He attributed his tinnitus to military noise exposure.  The examiner asked the Veteran why he did not report tinnitus during his September 2006 examination, and the Veteran replied that "he didn't recognize [tinnitus] as ringing."  

The Veteran described his symptoms as "a bilateral, intermittent high pitched ringing" which occurred "a couple times a month" and lasted approximately one minute.  

The examiner concluded that it was less likely than not that the Veteran's tinnitus was related to exposure to noise during service.  His opinion was based on "the conflicting history reported by the [V]eteran and the lack of proximity between the dates of service and the date of this evaluation."  

In order for a service connection claim to be granted, nexus evidence linking the present disorder to service or to continued symptoms since service is required.  The December 2012 examiner noted the Veteran's competent reports of tinnitus and a history of in-service noise exposure; however, he found that the inconsistency with which the Veteran reported his symptoms during the appeal period, as well as the fact that the Veteran's stated history of an onset of symptoms well after his discharge from service, weighed against a conclusion that his tinnitus is related to his active service.   The examiner is an audiologist and competent to render an opinion in this matter.  His findings are reasonably based on the evidence of record and his own evaluation of the Veteran.  

The Veteran does not assert, and indeed the record does not reflect, that his tinnitus first began during service or immediately thereafter.  His claim is based solely on his belief that his tinnitus is the result of in-service noise exposure.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), diagnosing the etiology of tinnitus falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) .  Thus, his assertions as to the etiology of his tinnitus are of little probative value.   

The preponderance of the evidence is against a finding of service connection for a tinnitus; there is no doubt to be resolved.  Service connection for this disability is not warranted.


ORDER

Entitlement to service connection for tinnitus is denied.  


REMAND

The October 2012 remand directed that a search be undertaken for records of mental health treatment from the Jesse Brown VA Medical Center (VAMC) in Chicago, Illinois, from February 2006 to June 2007.  

In November 2012, the Jesse Brown VAMC replied that there were no electronic medical records from February 1, 2006 to May 31, 2007, but went on to state that  "the records are being searched for."  No formal finding as to the unavailability of the records has been issued, and there is no indication that a search for hard copies of the records has been accomplished.

However, a June 2007 clinical note from the Jesse Brown VAMC reflects that the Veteran had been recently referred to that facility for evaluation of possible PTSD by "Mr. N.," who had been treating the Veteran for PTSD since February 2006.  Thus, it appears that the Veteran may have received treatment from a non-VA healthcare provider, not the VA facility, from February 2006 to June 2007.   Nevertheless, VA's duty to assist necessitates that a search for hard copies of any VA treatment notes from February 2006 to June 2007 be accomplished.  

According to VA treatment records and statements submitted by Mr. N., the Veteran has been treated for PTSD by Mr. N. at the Veterans Resource Center in Chicago, Illinois, since February 2006.  Mr. N.'s records must therefore be obtained, pending any necessary release from the Veteran, as they are likely relevant to the Veteran's claim.  38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).  Updated VA treatment records must also be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain all VA treatment records since September 2012.

2.  Conduct a search for hard copies of VA treatment notes from the Jesse Brown VAMC dated from February 2006 to June 2007.  If it is ultimately determined that these records do not exist or are unavailable, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 

3.  After securing any necessary written authorization, obtain all available treatment records since February 2006 from Mr. N. and/or the Veterans Resource Center.  If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records.

4.  After the above has been completed, readjudicate the claims, taking into consideration all evidence added to the file since the most recent VA adjudication.  If any of the claims continue to be denied, the Veteran and his representative must be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for appellate review.

The appellant 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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs