Citation Nr: 1327696 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 12-08 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. The issue of entitlement to an initial disability rating in excess of 10 percent for PTSD 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. FINDING OF FACT Affording the Veteran the benefit of the doubt, his tinnitus was incurred during his active service. CONCLUSION OF LAW The criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease 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). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). Analysis The Veteran contends that he was exposed to acoustic trauma from combat noise in service and that he had a ringing in his ears since that time. See April 2010 claim. The Veteran's Report of Separation from Service (DD Form 214) reflects that he served during the Vietnam War era and his military occupational specialty (MOS) was a Field Artillery Battery Man. Service personnel records reflect that the Veteran served in the Republic of Vietnam from September 1966 to September 1967. These records demonstrate duties and circumstances consistent with noise exposure from artillery fire. Therefore, the Board concludes that the Veteran was exposed to high levels of noise in service. Service treatment reports are absent of any complaints, treatment or findings related to tinnitus or ear problems. In the November 1965 induction examination, a clinical evaluation of the ears and drums revealed normal findings. In March 1967, the Veteran was issued one pair of ear plugs and subsequent follow up in June 1967 and September 1967 revealed no complaints or problems with the ears. A November 1965 Report of Medical History reflects that the Veteran had no reported history of ear, nose or throat trouble or running ears. In a February 1969 separation examination, a clinical evaluation of the ears and drums revealed no abnormalities. At a September 2010 VA examination, the Veteran reported a history of military noise exposure from combat artillery while he served in Vietnam. He also reported having post military noise exposure due to occasional occupational machinery noise, although he primarily worked for the post office for 33 years and was not exposed to high risk noise. The Veteran currently complained of having tinnitus. Although he could not isolate a date of onset for his tinnitus, he stated that it was sometime after military service. The examiner opined that tinnitus was not caused by or a result of acoustic trauma during military service. While he acknowledged the Veteran's documented combat service, the examiner found no evidence of tinnitus related to acoustic trauma during the Veteran's military service. He also noted that there was no evidence of hearing loss in the current examination through 4000 Hertz. The examiner found that the Veteran did not correlate his tinnitus onset to acoustic trauma or noise exposure during service, having stated that tinnitus started after service, and he could not give a specific date of onset. He then noted that the intermittent tinnitus described was not consistent with tinnitus secondary to acoustic trauma. Therefore, the examiner concluded that there was no audiological basis for the tinnitus complaint. After a careful review of the record, the Board finds that the evidence is in approximate balance, both for and against the claim for service connection for tinnitus. Thus, resolving all doubt in favor of the Veteran, his current tinnitus was incurred during his active service and entitlement to service connection for tinnitus is warranted. As noted above, the Veteran's service information supports his reports of exposure to excessive noise during his active service. The post-service medical evidence, including the September 2010 VA examination, also reflects the Veteran has a current tinnitus disability. Tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). Additionally, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis and the veteran, as a layperson is competent to testify as to his symptoms. See Charles, 16 Vet. App. 370 ("ringing in the ears is capable of lay observation"); see also Falzone, 8 Vet. App. at 403. Therefore, the Veteran's own reports of experiencing tinnitus would be able to provide a lay diagnosis of this disability. The Veteran is also competent to report on factual matters of which he has firsthand knowledge, e.g., exposure to excessive noise during his service and to having experienced symptoms of tinnitus ever since. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Id. In addition, the Board finds that the Veteran's statements regarding his exposure to excessive noise during active service are credible as they are supported by his service records, including his DD Form 214 which reflects his MOS was a Field Artillery Battery Man and thereby supports his reports of exposure to noise from combat. See Jandreau, 492 F.3d 1372; see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). See, too, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.). In this regard, the credibility of his report of exposure to excessive noise in service also advances the credibility of the Veteran's lay statements regarding having symptoms of tinnitus since his active service. See Id. The September 2010 VA compensation examiner's unfavorable opinion notwithstanding, the Board finds there is sufficient other evidence in the file to place the evidence as a whole into relative equipoise and approximately evenly balanced for and against the claim, allowing the Board to grant the claim with resolution of all reasonable doubt in the Veteran's favor. 38 C.F.R. § 3.102. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; rather, there need only be this approximate balance of evidence for and against the claim for the Veteran to prevail. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the September 2010 VA examiner's opinion, taken together with the Veteran's service information and his credible lay statements, puts the evidence in relative equipoise as to whether the Veteran's current tinnitus is related to the military noise exposure incurred during his active service. Accordingly, the Board will resolve doubt in favor of the Veteran and find that his tinnitus is related to his military noise exposure. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue entitlement to an initial disability rating in excess of 10 percent for PTSD must be remanded for further development. The Veteran was last evaluated for his PTSD in September 2010. At that time it was noted that he had no history of panic attacks. However, the Veteran indicated on his VA Form 9 in March 2012 that he had one to three panic attacks per week. As the Veteran was last provided a VA examination for his PTSD in September 2010, approximately three years ago, and the recent statements provided by the Veteran and his representative indicate a possible worsening of symptoms, the Board finds that a current VA examination is necessary to adequately evaluate the claims on appeal. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95; see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). In addition, as the record reflects the Veteran had received continuing treatment at VA and the last VA medical records associated with the file are from January 2011, with the exception of one VA outpatient treatment report from February 2012, ongoing medical records should also be obtained. 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). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all VA medical records from January 2011 to the present and all private treatment records adequately identified by the Veteran. All attempts to retrieve these records should be documented in the claims file. All records which are not duplicates of those already in the claims file should be associated with the claims file. The AMC/RO should document whether or not these documents were available. 2. The AMC/RO should schedule the Veteran for a VA examination by an appropriate specialist, to determine the current nature and etiology of his PTSD. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's PTSD should consist of all necessary testing to adequately assess the severity of the current disability. The examiner is asked to comment on the degree of severity of the Veteran's PTSD and its effect on: (a). The Veteran's social and occupational functioning (i.e. whether impairment of social and occupational functioning is: (1) total; (2) with deficiencies in most areas; (3) with reduced reliability and productivity; or (4) with occasional decrease in work efficiency or intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and normal conversation)). (b). The Veteran's current employment; and (c). The Veteran's activities of daily living. A complete explanation should be provided for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all instructions. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs