Citation Nr: 1326087 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-23 838A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a disability rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1968 to January 1970, to include a tour of duty in the Republic of Vietnam. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and February 2011 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey, that denied the above claims. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran asserts that he currently has bilateral hearing loss that is manifested as a result of acoustic trauma experienced from gun fire in his service with an infantry unit during his period of active service. VA has conceded that the Veteran was exposed to acoustic trauma during service. A VA examination report dated in September 2010 shows that the Veteran reiterated his exposure to acoustic trauma during service. Audiological evaluation revealed normal to moderate sensorineural hearing loss in each ear. The VA examiner opined that the current hearing loss was not due to active service. In a September 2010 addendum, it was explained that hearing threshold levels were within normal limits, bilaterally at induction and at separation, hearing threshold levels had not become significantly poorer at separation when compared to induction hearing threshold levels. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Moreover, the Veteran asserts that his hearing loss is attributed to his combat service. See April 2011 statement by the Veteran. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) ; 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton, 21 Vet. App. at 36-37; Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). As to the issue of an increased disability rating for the service-connected PTSD, in the June 2010 notice of disagreement, the Veteran representative indicated that the Veteran continued to attend weekly sessions at the Secaucus Vet Center, and that his disability was much worse than the VA examination on which the rating action was based on had shown. In this regard, on remand, efforts must be made to obtain any ongoing treatment records of the Veteran from the Secaucus Vet Center. VA has a duty to seek records of relevant treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). Additionally, when a claimant alleges that a service-connected disability has worsened since the last examination, as is the case here, a new examination must be obtained to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, as this matter is being remanded for the reasons set forth above, any additional VA and private treatment records of the Veteran for his bilateral hearing loss and PTSD should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the appropriate VA medical facilities and attempt to obtain any ongoing medical treatment records pertaining to the Veteran for treatment of his bilateral hearing loss and PTSD. All records obtained should be associated with the Veteran's claims file. 2. The RO shall obtain the Veteran's ongoing outpatient treatment records from the Vet Center in Secaucus, New Jersey, as identified in the June 2010 notice of disagreement. The Veteran is advised that it may be necessary for him to complete an appropriate authorization form to obtain these records. If the Veteran fails to provide the authorization, he should be advised that he may provide the records himself. All efforts to obtain these records must be documented in the claims file. If no such records are available, the Veteran must be so informed and also told of the efforts to obtain the records. 3. The RO shall afford the Veteran a VA audiological examination for the purpose of ascertaining the nature and etiology of his asserted bilateral hearing loss disability. The claims file, to include a copy of this remand, must be made available to the examiner for review. Any tests or studies to determine the exact nature of any asserted disorder(s) should be undertaken, including whether the Veteran has asbestos-related lung disease. The examiner must note that exposure to acoustic trauma during service has been conceded by VA. After the completion of the examination and review of the record, the examiner is requested to opine as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss disability had its onset in service, had its onset in the year immediately following active service, or is the result of acoustic trauma sustained during active duty. The examiner is advised that the absence of evidence of treatment for bilateral hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The RO shall schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his PTSD. The claims file and a copy of this Remand shall be made available to the examiner in conjunction with the examination, and the examiner should indicate that the claims file was reviewed. All tests deemed necessary by the examiner must be performed, and all findings set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected PTSD. The findings of the examiner shall address the extent of social and occupational impairment attributable to the Veteran's PTSD, to include an opinion as to whether he is considered to be totally socially and occupationally impaired due to PTSD. The examiner shall assign a GAF score and explain the basis for this finding. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 5. The RO will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He 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. Claims 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).