Citation Nr: 1328282	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-46 749A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUES

1.  Whether there is new and material evidence to reopen a 
claim of entitlement to service connection for hearing loss.

2.  Entitlement to service connection for left ear hearing 
loss.

3.  Whether there is new and material evidence to reopen a 
claim of entitlement to service connection for tinnitus.

4.  Entitlement to a rating higher than 50 percent for 
posttraumatic stress disorder (PTSD), other than during 
times when the Veteran had a temporary 100 percent rating 
for this disability under the provisions of 38 C.F.R. § 4.29 
because of hospital treatment exceeding 21 days.

5.  Entitlement to a total disability rating based on 
individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	C. Kempton Letts, Esq.


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to January 
1970.

This appeal to the Board of Veterans' Appeals (Board/BVA) is 
from a January 2009 rating decision in which the Department 
of Veterans Affairs (VA) Regional Office (RO) declined to 
reopen the Veteran's claims of entitlement to service 
connection for bilateral (right and left ear) hearing loss 
and tinnitus, denied entitlement to a TDIU, and other than 
permitting a temporary total (100 percent) evaluation for 
his service-connected PTSD because of a hospitalization 
exceeding 21 days, denied an evaluation higher than 50 
percent for this disability.

In November 2012, in support of these claims, the Veteran 
testified at a hearing at the RO before the undersigned 
Veterans Law Judge of the Board (Travel Board hearing).  A 
transcript of the hearing is of record.

During the hearing the Veteran submitted additional evidence 
and waived his right to have the RO initially consider it, 
preferring instead to have the Board do so in the first 
instance.  38 C.F.R. § 20.1304(c) (2012).

The issues of whether there is new and material evidence to 
reopen the claim for service connection for tinnitus and 
entitlement to a TDIU require further development, so the 
Board is remanding these claims.


FINDINGS OF FACT

1.  A March 2004 rating decision denying service connection 
for bilateral hearing loss is a final and binding 
determination based on the evidence then of record; although 
relevant evidence was added to the record within a year of 
that decision, the RO considered that additional evidence 
and all other evidence then of evidence in a subsequent 
statement of the case (SOC), and in response the Veteran 
failed to submit a timely substantive appeal (VA Form 9 or 
equivalent statement) to complete the steps necessary to 
perfect his appeal of this claim to the Board.  

2.  But regarding his left ear, additional evidence received 
since that March 2004 rating decision is not cumulative and 
redundant and raises a reasonable possibility of 
substantiating his claim of entitlement to service 
connection for hearing loss, at least in this particular 
ear.  

3.  Regarding his right ear, however, the additional 
evidence received since the March 2004 rating decision is 
cumulative and redundant and does not raise a reasonable 
possibility of substantiating his claim of entitlement to 
service connection for hearing loss in this other ear.

4.  His left ear hearing loss did not originate during his 
military service, or within one year of his discharge, or 
even for many ensuing years, and it is unrelated to his 
service, including especially to any noise exposure he 
experienced in service and consequent injury (acoustic 
trauma).

5.  His service-connected PTSD causes occupational and 
social impairment with deficiencies in most areas such as 
work, school, family relations, judgment, thinking, or mood.


CONCLUSIONS OF LAW

1.  The unappealed March 2004 rating decision that denied 
the Veteran's claim of entitlement to service connection for 
bilateral (left and right ear) hearing loss is final and 
binding based on the evidence then of record.  38 U.S.C.A. § 
7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 
20.1103 (2012).

2.  But there is new and material evidence since that 
decision to reopen the claim for service connection for 
hearing loss in the left ear, though not also as concerning 
the alleged hearing loss in the right ear.  38 U.S.C.A. § 
5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  It still is not shown, however, the left ear hearing 
loss is the result of disease or injury incurred in or 
aggravated by his military service or that it may be 
presumed to have been incurred during his service.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 
(2012).

4.  The criteria are met for a higher 70 percent rating for 
the PTSD, though no greater rating.  38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 
4.21, 4.125, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided by the VCAA, VA has duties to notify and assist 
claimants in substantiating claims for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 
2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2012).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, which is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  To this end, VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will obtain; and (3) 
that the claimant is expected to provide.

Ideally, this notice should be provided prior to an initial 
unfavorable decision on a claim by the RO as the Agency of 
Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  If, however, for whatever reason it was 
not, or the notice provided was inadequate or incomplete, 
the issuance of a fully compliant VCAA notification followed 
by readjudication of the claim, including in a 
statement of the case (SOC) or supplemental SOC (SSOC), is 
sufficient to "cure" the timing defect in the provision of 
this notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 
(Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 
20 Vet. App. 370 (2006).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U. S. 
Court of Appeals for Veterans Claims (Court/CAVC) held that, 
upon receipt of an application alleging entitlement to 
service connection, 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b) require VA to review the information 
and evidence presented with the claim and provide the 
claimant notice of what information and evidence not 
previously provided, if any, will assist in substantiating, 
or is necessary to substantiate, each of the five elements 
of the claim.  So this consist of notice of both what is 
required to establish underlying entitlement to service 
connection (i.e., (1) Veteran status, (2) proof the Veteran 
has the alleged disability, and (3) a relationship between 
the disability and his military service), but also as 
concerning a "downstream" (4) disability rating and (5) 
effective date for the award of benefits in the eventuality 
service connection is granted.



In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court 
clarified VA's duty to notify in the context of petitions to 
reopen previously denied claims.  With respect to such 
claims, VA must both notify a claimant of the evidence and 
information that is necessary to reopen the claim and of the 
evidence and information necessary to establish entitlement 
to the underlying claim for the benefit that is being 
sought.  To satisfy this requirement, VA is required to look 
at the bases for the denial in the prior decision and 
provide the claimant a notice letter describing what 
evidence would be necessary to substantiate those elements 
required to establish entitlement to service connection that 
were found insufficient in the previous denial.  VA's Office 
of General Counsel issued informal guidance interpreting 
Kent as requiring the notice to specifically identify the 
kind of evidence that would overcome the prior deficiency 
rather than simply stating the evidence must relate to the 
stated basis of the prior denial.  See VA Gen. Couns. Mem., 
para. 2, 3 (June 14, 2006).

But a VCAA notice error is not presumptively prejudicial, 
even when shown to have occurred, rather, must be judged on 
a case-by-case basis.  And as the pleading party attacking 
the agency's decision, the Veteran, not VA, bears this 
evidentiary burden of proof of not only establishing error, 
but, above and beyond that, showing how it is unduly 
prejudicial, meaning outcome determinative of his claim.  
Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the Veteran in June 2008 that fully addressed 
all three notice elements.  The letter informed him of the 
evidence required to substantiate his claims and of his and 
VA's respective duties in obtaining this necessary 
supporting evidence.  He also was apprised of the applicable 
provisions regarding disability ratings and effective dates.  
As well, he was advised of the reasons his service-
connection claims were previously denied and informed of the 
type of evidence needed to reopen these finally-decided 
claims.



VA also as mentioned has a duty to assist the Veteran in the 
development of his claims.  This duty includes assisting him 
in the procurement of relevant records such as his service 
treatment records (STRs), post-service VA and private 
medical records, records from other Federal agencies such as 
the Social Security Administration (SSA), and providing him 
an examination for a medical opinion when necessary to 
decide his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c).

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudicing him, at least as concerning the claims 
being decided.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  The record contains his STRs, VA clinical records, 
private medical records, and VA examination reports.  
Regarding examination, when VA undertakes to provide a 
medical examination, it must ensure the examination is 
adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
As to these claims being decided, the examinations provided 
and opinions obtained are adequate, as they were based on a 
review of the pertinent evidence of record, clinical 
evaluations, as well as comprehensive interviews of the 
Veteran, and the examination reports contain explanatory 
rationales for the opinions rendered.  Accordingly, the 
Board finds that VA's duty to assist in obtaining VA 
examinations and opinions concerning these claims has been 
met.  38 C.F.R. § 3.159(c)(4).

Significantly, neither the Veteran nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a 
fair adjudication of these claims that has not been 
obtained.  Hence, no further notice or assistance to the 
Veteran is required to fulfill VA's duty to assist him in 
the development of these 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); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).



Standard of Review

After the evidence has been assembled, it is the Board's 
responsibility to evaluate the entire record.  38 U.S.C.A. § 
7104(a) (West 2002).  When there is an approximate balance 
of evidence regarding the merits of an issue material to the 
determination of a matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2012) 
(reasonable doubt to be resolved in Veteran's favor).  In 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
stated that "a Veteran need only demonstrate that there is 
an 'approximate balance of positive and negative evidence' 
in order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  
See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.

New and Material Evidence

Service connection will be granted if it is shown the 
Veteran suffers from disability resulting from an injury 
sustained or a disease contracted in the line of duty during 
active military service, or for aggravation during service 
of a pre-existing condition beyond its natural progression.  
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

That an injury occurred in service alone is not enough; 
there must be chronic (i.e., permanent) disability resulting 
from that injury.  If there is no showing of a resulting 
chronic condition during service, or this is legitimately 
questionable, then a showing of continuity of symptomatology 
after service is required to support a finding of chronicity 
and the claim.  38 C.F.R. § 3.303(b).  The U. S. Court of 
Appeals for the Federal Circuit (Federal Circuit Court) has 
clarified, however, that this notion of continuity of 
symptomatology as an alternative means of showing chronicity 
of disease or injury in service to alternatively link the 
currently claimed disability to service only pertains to 
chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker 
v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).



Although Walker indicated that hearing loss in general is 
not one of the conditions identified by § 3.309(a) and 
chronic, per se, so generally not subject to this continuity 
of symptomatology pleading and proof exception, VA accepts 
that a particular type of hearing loss - namely, 
sensorineural hearing loss - is covered by this VA 
regulation as an organic disease of the nervous system.  
The Veterans Benefits Administration's (VBA's) M21-1MR has a 
section titled "Determining Impaired Hearing as a 
Disability," which includes the following note:  
"Sensorineural hearing loss is considered an organic disease 
of the nervous system and is subject to presumptive service 
connection under 38 CFR 3.309(a)."  
M21-1MR III.iv.4.B.12.a.  The VA Manual has the force and 
effect of a VA regulation.

Furthermore, as an organic disease of the nervous system, 
sensorineural hearing loss also may be presumed to have been 
incurred in service if manifested to a compensable degree 
(meaning to at least 10-percent disabling) within one year 
of separation from service.  This presumption is rebuttable 
by affirmative evidence to the contrary, however.  38 
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing 
direct service incurrence or aggravation or by using 
applicable presumptions, if available.  See Combee v. Brown, 
34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection is permissible for any disease diagnosed 
after discharge, when the evidence, including that pertinent 
to service, establishes the disease was incurred in service.  
38 C.F.R. § 3.303(d).

In sum, to establish entitlement to service connection, the 
following must be shown:  (1) the existence of a present 
disability; (2) in-service incurrence or aggravation of a 
relevant disease or an 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).

As specifically concerning claims of entitlement to service 
connection for hearing loss, the threshold for normal 
hearing is from zero to 20 decibels, and higher threshold 
levels indicate some degree of hearing loss.  Hensley v. 
Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical 
Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., 
at 110-11 (1988)).  According to VA standards, however, 
impaired hearing only will be considered to be an actual 
ratable 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 these frequencies 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.

But for service connection, it is not required that a 
hearing loss disability by these standards of 38 C.F.R. § 
3.385 be demonstrated during service, or even within the 
one-year presumptive period following discharge, although a 
hearing loss disability by these standards of § 3.385 must 
be currently present to have a ratable disability.  If there 
is current ratable hearing loss disability, then service 
connection is possible if this current disability can be 
adequately linked to the Veteran's military service 
as opposed to other unrelated factors.  Ledford v. 
Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection 
for hearing loss may be granted where there is competent and 
credible evidence of acoustic trauma due to significant 
noise exposure in service, post-service audiometric findings 
meeting regulatory requirements for hearing loss disability 
for VA purposes (i.e., 38 C.F.R. § 3.385 ), and a medically 
sound basis upon which to attribute the post-service 
findings to the injury in service, as opposed to 
intercurrent causes.  Hensley, 5 Vet. App. at 159.

A claim of entitlement to service connection generally must 
be accompanied by medical evidence establishing the claimant 
currently has the claimed disability or, at the very least, 
showing he has at some point since the filing of his claim.  
Absent proof of present disability, there can be no valid 
claim.  See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 
1998) (38 U.S.C. § 1110 requires current symptomatology at 
the time the claim is filed in order for a Veteran to be 
entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 
(Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of 
a present disability for VA compensation purposes); 


Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting 
that service connection presupposes a current diagnosis of 
the claimed disability); Chelte v. Brown, 10 Vet. App. 268 
(1997) (observing that a "current disability" means a 
disability shown by competent medical evidence to exist at 
the time of the award of service connection).

There are instances when the type of disability claimed is 
what is considered a simple condition, allowing for lay 
evidence to establish its existence.  So medical evidence is 
not always or categorically required when the determinative 
issue involves either medical diagnosis or etiology, but 
rather such issue may, depending on the facts of the 
particular case, be established by competent and credible 
lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. 
Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  But that said, 
although claimants may be competent to provide the diagnoses 
of simple conditions, such as a broken leg, separated 
shoulder, pes planus (flat feet), varicose veins, tinnitus 
(ringing in the ears), etc., they are not competent to 
provide evidence on more complex medical questions beyond 
simple observations, such as concerning cancer.  See 
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) 
(indicating lay 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).  See 
also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 
2010) (recognizing that in some cases lay testimony "falls 
short" in proving an issue that requires expert medical 
knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. 
Cir. 2010) (concluding that a Veteran's lay belief that his 
schizophrenia had aggravated his diabetes and hypertension 
was not of sufficient weight to trigger VA's duty to seek a 
medical opinion on the issue).

Turning now to the relevant facts and procedural history of 
this case.  In a March 2004 rating decision the RO denied 
the Veteran's claim of entitlement to service connection for 
bilateral hearing loss because he did not have sufficient 
hearing loss to be considered a ratable disability according 
to VA regulation.  See 38 C.F.R. § 3.385.  He was properly 
notified of that March 2004 rating decision, but although he 
initiated an appeal, he did not perfect it.  In other words, 
he filed a timely notice of disagreement (NOD), resultantly 
was provided an SOC, but did not then in response also file 
a timely substantive appeal (VA Form 9 or equivalent 
statement) to complete the steps necessary to perfect his 
appeal to the Board.  See 38 C.F.R. § 20.200.  Thus, that 
March 2004 rating decision is final and binding on him based 
on the evidence then of record.  38 C.F.R. §§ 3.104(a), 
3.160(d), 20.302, 20.1103 (2012).  The Board sees that a 
December 2004 audiogram report was added to the record 
within a year of that March 2004 rating decision.  The 
report showed left ear hearing loss, so is relevant, but the 
RO considered this additional evidence in a February 2005 
SOC.  Hence, it was then incumbent on the Veteran to perfect 
a timely appeal upon receipt of that SOC by also filing a 
timely VA Form 9 or equivalent statement, but he clearly 
did not, so mere receipt of that additional audiogram report 
during the one-year he had for timely appealing that March 
2004 rating decision does not vitiate the finality (res 
judicata) of that decision.  See 38 C.F.R. § 3.156(b).

Generally, when a claim is disallowed, it may not be 
reopened and allowed, and a claim based on the same factual 
basis may not be considered.  38 C.F.R. § 20.1103.  A claim 
on which there is a final decision may be reopened if new 
and material evidence is submitted.  38 U.S.C.A. § 5108.  
"New" evidence means existing evidence not previously 
submitted to agency decision makers.  "Material" evidence 
means existing evidence that, by itself or when considered 
with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  
New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial of the claim sought to be reopened, and 
must raise a reasonable possibility of substantiating the 
claim.  38 C.F.R. § 3.156(a).

The threshold for determining whether new and material 
evidence raises a reasonable possibility of substantiating a 
claim is "low."  See Shade v. Shinseki, 
24 Vet. App. 110, 117 (2010).  Furthermore, in determining 
whether this low threshold is met, VA should not limit its 
consideration to whether the newly submitted evidence 
relates specifically to the reason why the claim was last 
denied, but instead should ask whether the evidence could 
reasonably substantiate the claim were the claim to be 
reopened, either by triggering the VA Secretary's duty to 
assist or through consideration of an alternative theory of 
entitlement.  Id., at 118.  Moreover, the Veteran need not 
present evidence as to each element that was a specified 
basis for the last disallowance, but merely new and material 
evidence as to at least one of the bases of the prior 
disallowance.  Id., at 120 (noting that the assistance of 38 
C.F.R. § 3.159(c)(4) would be rendered meaningless if new 
and material evidence required a claimant to submit medical 
nexus evidence when he has provided new and material 
evidence as to another missing element).

The evidence submitted to reopen a claim is presumed to be 
true for the limited purpose of determining whether it is 
new and material to the claim, but VA does not have to 
consider the inherently incredible to be credible or to 
blindly accept, as true, assertions that are beyond the 
competence of the person making them.  Duran v. Brown, 7 
Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 
510, 513 (1992).

The evidence of record at the time of the March 2004 rating 
decision and that submitted within a year of it included the 
STRs showing a shift in thresholds but no material hearing 
loss and a VA audiologic examination report dated in January 
2004 indicating the following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
15
15
20
LEFT
10
15
15
10
20

Speech recognition was 94 percent bilaterally, so in each 
ear.

The results of a subsequent December 2004 audiogram, so 
later that same year, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
25
LEFT
15
20
20
30
35

Speech recognition was 96 percent in the right ear and 92 
percent in the left ear.

Thus, as those results indicate, the Veteran did not have 
sufficient hearing loss in his right ear to be considered an 
actual ratable disability according to § 3.385, much less as 
a result or consequence of his military service.  He did 
however have sufficient hearing loss in his left ear when 
considering his speech recognition score during the December 
2004 evaluation (since it was less than 94 percent).

The determinative question then became whether the hearing 
loss in his left ear was the result of his military service.  
See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A 
determination of service connection requires a finding of 
the existence of a current disability and a determination of 
a relationship between that disability and an injury or a 
disease incurred in service.").

The accompanying report indicated that military noise 
exposure could not be ruled out as a causative factor of his 
hearing loss.

The RO considered this evidence in the February 2005 SOC but 
ultimately determined the left ear hearing loss was 
unrelated to the Veteran's military service, including to 
the perforated eardrums he had had in service, since no 
evidence then of record related (at least definitively 
enough) his slight left ear hearing loss to his service that 
had ended more than three decades earlier.

The additional evidence since received includes the report 
of a more recent April 2008 audiologic examination with the 
following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
25
25
35
LEFT
20
20
30
30
40

Speech discrimination was 96 percent in the right ear and 92 
percent in the left ear.

But aside from reaffirming the Veteran had sufficient 
hearing loss in his left ear to be considered a ratable 
disability according to § 3.385, this additional examiner 
indicated that the type and degree of noise exposure the 
Veteran had experienced in service was sufficient to have 
caused the type of hearing loss he now has.  Ultimately, 
though, this examiner indicated the pattern of left ear 
hearing loss shown was "less typical" of noise-induced 
hearing loss.

In December 2008, so later that same year, the Veteran had 
another VA audiologic examination.  Audiometric results were 
as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
15
20
LEFT
20
20
25
25
35

Speech discrimination was 94 percent in the right ear and 96 
percent in the left ear.

The examiner indicated the current hearing loss was due to 
the aging process and not to the Veteran's service, as there 
was no hearing loss in service and since noise-induced 
hearing loss did not have a delayed onset.

The additional evidence received since the RO's March 2004 
rating decision still does not tend to establish the Veteran 
has sufficient hearing loss in his right ear to be 
considered an actual ratable disability according to the 
threshold minimum requirements of 38 C.F.R. § 3.385.  Hence, 
just as when this component of his claim was previously 
considered, he has not established he has the alleged 
disability, that is, at least as concerning this particular 
ear (his right ear).  Obviously then, without this required 
proof of current disability involving this ear, there 
necessarily cannot be attribution of this for all intents 
and purposes nonexistent disability and any disease, injury 
or event during or coincident with his military service like 
repeated exposure to extremely loud noise.



Consequently, absent the required new and material evidence 
as concerning this ear, not just since the RO's prior, final 
and binding, March 2004 decision, but also since even 
receipt of the petition to reopen this claim, the claim as 
it relates to this ear cannot be reopened.  See McClain v. 
Nicholson, 21 Vet. App. 319 (2007) (clarifying that this 
requirement of current disability is satisfied when the 
claimant has the disability at the time the claim for VA 
disability compensation is filed or during the pendency of 
the claim and that a claimant may be granted 
service connection even though the disability resolves prior 
to VA's adjudication of the claim).

Conversely, not only is there affirmation he has sufficient 
hearing loss in his other ear (his left ear) to be 
considered a ratable disability by VA standards, again, 
meaning according to the threshold minimum requirements of 
38 C.F.R. § 3.385, but there also is at least suggestion of 
a possible correlation between the hearing loss in this ear 
and an event - namely, noise exposure - which occurred 
during his military service.  And although there is seeming 
difference of opinion concerning this, at least some of the 
evidence submitted since the RO's March 2004 decision tends 
to support this notion, so is new and material to the claim 
at least as concerning this other ear (the left ear).  
Specifically, although the December 2008 VA audiologic 
examiner opined that current hearing loss was not due to 
service and instead due to the aging process, meaning simply 
getting older, the April 2008 private examiner offered a 
contrary opinion partially favorable to the Veteran's claim 
indicating that the type of in-service noise exposure he had 
described could have caused his current hearing loss - 
although the type and pattern of left ear hearing loss shown 
admittedly was less typical of noise-induced hearing loss.  
This private examiner therefore concluded at least 
partially, albeit not entirely, favorable to the claim, 
which is still sufficient reason to reopen the claim in 
light of the holding in Shade.

The Board is aware that the April 2008 opinion is similar to 
that offered by the December 2004 examiner, but it is more 
decisive and reasoned.  Thus, it is qualitatively different 
from the December 2004 opinion and does not constitute 
cumulative evidence.



Service Connection

During the March 1968 military induction examination, no 
hearing loss was shown, and the Veteran's PULHES physical 
profile amounted to a "picket fence" (i.e., all 1's), 
indicating a high level of medical fitness.  See generally 
Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) (explaining 
the military medical profile system).  He began serving on 
active duty that same month.

A January 1969 notation in the STRs revealed ear trouble 
caused by a blast concussion, and there was slight 
hemorrhaging of both eardrums.  In February 1969 bilateral 
perforated tympanic membranes (eardrums) were noted.  A 
February 1969 audiogram indicated the following results:




HERTZ



500
1000
2000
3000
4000
LEFT
25
25
25

25

That month, the STRs indicated decreased hearing and 
bilateral tympanic membrane perforations.  

But by the time of his separation examination, the Veteran's 
ears were found to be normal, and his eardrums not 
perforated.  As well, no hearing loss was found; indeed, the 
PULHES physical profile indicated a "1" for hearing, 
indicating the highest level of hearing.

His military service ended in January 1970.

There is no subsequent mention of hearing loss in either 
ear, either in the way of a relevant subjective complaint or 
objective clinical finding, for more than the next three 
decades (so greater than 30 years).



During VA examination in January 2004, audiometric results 
were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
15
15
10
20

Speech recognition on the left was 94 percent.  The 
foregoing does not represent hearing loss as defined by VA 
regulation.  38 C.F.R. § 3.385.  The Veteran described noise 
exposure in service to include as secondary to the blast 
that had caused his eardrum perforation.  On physical 
examination, however, his tympanic membranes (eardrums) were 
described as normal.  The examiner did not offer any opinion 
regarding the etiology of hearing loss, as none was found.

December 2004 audiometric results were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
20
30
35

Speech recognition was 92 percent on the left.  The 
foregoing speech recognition score represents left ear 
hearing loss.  38 C.F.R. § 3.385.  The accompanying report 
indicated that military noise exposure could not be ruled 
out as a causative factor of the Veteran's hearing loss.  So 
there was not exclusion of his service as the source of the 
hearing loss in this ear, but there equally was not 
definitive indication of this purported relationship either.  
At most there was just suggestion, instead, of this 
possibility.

An April 2008 private audiologic examination report 
indicated the following results:




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
30
30
40

Speech discrimination was 92 percent on the left.  The 
examiner indicated that the type and degree of noise 
exposure experienced by the Veteran in service was 
sufficient to have caused the type of hearing loss suffered 
by him currently.  But the examiner also stated that the 
configuration of left ear hearing loss was "less typical" of 
noise-induced hearing loss.  So he seemingly ultimately 
disassociated the Veteran's left ear hearing loss from his 
military service.

In December 2008, the Veteran was afforded another VA 
audiologic examination.  Audiometric results were as 
follows:




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
25
25
35

Speech discrimination was 96 percent on the left.  Thus, no 
left ear hearing loss was present for VA compensation 
purposes.  38 C.F.R. § 3.385.  In any event, the examiner 
indicated that any current hearing loss was due to the aging 
process and not to service, as there was no hearing loss in 
service and noise-induced hearing loss did not have a 
delayed onset.

The Veteran contrarily asserts that his left ear hearing 
loss was caused by noise exposure in service to include 
noise from the blast that caused perforated eardrums.  
Although lay persons are competent to provide opinions on 
some medical issues, see Kahana v. Shinseki, 24 Vet. App. 
428, 435 (2011), the specific issue in this case, namely the 
etiology of his hearing loss, falls outside the realm of 
common knowledge of a lay person.  See Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay 
persons not competent to diagnose cancer).  Thus, his lay 
assertions regarding the origins of his left ear hearing 
loss do not constitute competent evidence on this critical 
and dispositive issue.



Whether he suffers from current left ear hearing loss 
sufficient to meet the threshold minimum requirements of 
§ 3.385 is equivocal, as the latest audiometric testing 
results reflect normal hearing - or at least less hearing 
loss than is required by this governing VA regulation.  
However, as several prior tests revealed ratable left ear 
hearing loss for VA compensation purposes, the Board will 
resolve this doubt in his favor and assume he has sufficient 
hearing loss in this ear to be considered a 
ratable disability and satisfy the threshold minimum 
requirements of § 3.385.  38 U.S.C.A. § 5107; 38 C.F.R. 
§ 3.102.  There still has to be attribution of the hearing 
loss in this ear to his military service, however, and it is 
in this equally critical respect that the evidence is less 
favorable to his claim.

The December 2004 examiner opined that military noise 
exposure could not be ruled out as a causative factor of the 
Veteran's hearing loss.  This opinion is not decisive and on 
its own perhaps too speculative to be probative, as medical 
evidence that is speculative, general, or inconclusive in 
nature cannot support a claim.  See 38 C.F.R. § 3.102 
(noting that reasonable doubt does not include resort to 
mere speculation or remote possibility); see also Obert v. 
Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 
Vet. App. 609, 611 (1992); and Bostain v. West, 11 Vet. App. 
124, 127-28 (1998), quoting Obert, 5 Vet. App. at 33 (and 
collectively finding that a medical opinion expressed in 
terms of "may" also implies "may or may not" and is too 
speculative to establish medical nexus); Warren v. Brown, 6 
Vet. App. 4, 6 (1993) (similarly finding that a doctor's 
statement framed in equivocal terms such as "could have 
been" is not probative).  See, too, Beausoleil v. Brown, 8 
Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 
521, 523 (1996).

There are indeed even other precedent cases discussing the 
lesser probative value of opinions like this that are 
equivocal, in various contexts, which essentially state that 
it is possible that what posited is true.  See, e.g., 
Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. 
Brown, 5 Vet. App. 227, 241 (1993); Winsett v. West, 11 Vet. 
App. 420, 424 (1998).  See, too, Bloom v. West, 13 Vet. App. 
185, 187 (1999) (a medical opinion based on speculation, 
without supporting clinical data or other rationale, does 
not provide the required degree of medical certainty).

Statements like this, which are inconclusive as to the 
origin of a disorder, generally cannot be employed as 
suggestive of a linkage between the disorder and the 
Veteran's military service.  Warren, 6 Vet. App. at 6; Sklar 
v. Brown, 5 Vet. App. 104, 145-6 (1993).  The same is true 
when an examiner concedes he cannot comment on etiology 
"without resorting to mere speculation."  However, these 
types of opinions also cannot be used to rule out this 
purported correlation, either.  Ultimately, noncommittal 
opinions like this amount to "nonevidence," neither for nor 
against the claim, because as explained, according to the 
holding in Bloom, service connection may not be based on 
speculation or remote possibility.  See again also 38 C.F.R. 
§ 3.102 (when considering application of the 
benefit-of-the-doubt doctrine, reasonable doubt is one 
within the range of probability, as distinguished from pure 
speculation or remote possibility).

But having said all of that, consider as well that a 
"absolutely accurate" determination of etiology is not a 
condition precedent to granting service connection, nor is 
"definite" or "obvious" etiology.  See Alemany v. Brown, 
9 Vet. App. 518, 519 (1996).  That is to say, use of 
cautious language does not always express inconclusiveness 
in a doctor's opinion.  Rather, the opinion should be viewed 
in its full context and not characterized solely by the 
medical professional's choice of words.  See Lee v. Brown, 
10 Vet. App. 336, 338 (1997).

Moreover, more recent case law suggests that caution must be 
exercised when referring to medical reports and opinions as 
"nonevidence" and that, instead, the probative value or 
weight (competency and credibility) of the evidence should 
be assessed.  Notably for instance, in Hogan v. Peake, 544 
F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court 
indicated a determination regarding service connection 
requires consideration of all pertinent medical and lay 
evidence, including medical opinions that do not state 
definitively when a particular disorder or condition began; 
therefore, classifying a medical opinion as "non-evidence" 
is "troubling."  In Fagan v. Shinseki, 573 F.3d 1282 (Fed. 
Cir. 2009), the Federal Circuit Court more recently held 
that an examiner's statement, which recites the inability to 
come to an opinion, provides neither positive nor negative 
support for service connection; therefore, it is not 
pertinent evidence regarding service connection.  The 
remainder of the report, however, must be considered as 
evidence of whether the disability was incurred in service.

An even more recent precedent case also admonished the Board 
for relying on medical opinions that also were unable to 
establish this required linkage, that is, without resorting 
to mere speculation, as cause for denying the Veteran's 
claims.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  In 
Jones, the Court noted it was unclear whether the examiners 
were unable to provide this requested definitive medical 
comment on etiology because they actually were unable to 
since the limits of medical knowledge had been exhausted or, 
instead, for example, needed further information to assist 
in making this determination (e.g., additional records 
and/or diagnostic studies) or other procurable and assembled 
data.  The Court in Jones acknowledged there are instances 
where a definitive opinion cannot be provided because 
required information is missing or can no longer be obtained 
or current medical knowledge yields multiple possible 
etiologies with none more likely than not the cause of the 
claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 
1, 6 (2009) (noting the Board need not obtain further 
medical evidence where the medical evidence "indicates that 
determining the cause is speculative").  The Court in Jones 
held, however, that in order to rely upon a statement that 
an opinion cannot be provided without resort to mere 
speculation, it must be clear that the procurable and 
assembled data was fully considered and the basis for the 
opinion must be provided by the examiner or apparent upon a 
review of the record.

Ultimately, the most that can be deduced from the December 
2004 examiner's opinion is that military noise exposure 
could not be excluded as the source or cause of the 
Veteran's hearing loss, but this is not necessarily 
tantamount to saying it is the reason for his hearing loss, 
only that it is a possible reason, which, as explained, is 
insufficient to establish the required cause-and-effect 
correlation needed to show entitlement to service connection 
for this claimed disability.

The April 2008 private examiner's opinion weighs against the 
claim because, although noise exposure admittedly could have 
caused the Veteran's left ear hearing loss, the particular 
configuration of his left ear hearing loss was 
"less typical" of noise-induced hearing loss, so not 
ultimately this etiology.

The December 2008 VA examiner, despite finding no ratable 
left ear hearing loss according to VA regulation (§ 3.385), 
opined that any current hearing loss was due to the aging 
process and not to the Veteran's service, as there was no 
hearing loss in service and since noise-induced hearing loss 
did not have a delayed onset.

The Veteran had a greater than 20-decibel loss in certain 
relevant frequencies during his service when examined in 
February 1969, in particular a 25-decibel loss in the 500, 
1000, 2000 and 4000 Hertz frequencies (3000 was not 
measured), which, according to the holding in Hensley, 
indicates he had some measure of hearing loss in this ear 
during his service, seemingly contradicting what the 
December 2008 VA compensation examiner concluded.  If only 
considering this, it would tend to undermine this VA 
examiner's opinion, but he also indicated that noise-induced 
hearing loss does not have a delayed onset.  Therefore, even 
if accepting the indication of hearing loss during service 
was the result of noise exposure, so noise-induced, 
including especially because of the blast injury causing 
perforation of the Veteran's tympanic membranes (eardrums), 
it is not shown he continued to have hearing loss for the 
remainder of his service or even for many ensuing years, 
indeed, decades.  So any hearing loss he experienced in 
service was acute and transitory, not instead chronic or 
permanent, and service connection is only granted for 
chronic residual disability.  Notably, he had additional 
hearing evaluations subsequent to that trauma in service 
during which there was no further indication of hearing 
loss, including in this specific ear.  So the VA examiner's 
ultimate determination that the Veteran's hearing loss in 
this ear is instead age related is consistent with this 
other evidence in the file, which shows far more recent 
onset of the current hearing loss.  See Nieves-Rodriguez v. 
Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical 
opinion should contain a conclusion and a reference to 
supporting data with a " reasoned medical explanation 
connecting the two."); Prejean v. West, 13 Vet. App. 444, 
448-9 (2000) (holding that factors for assessing the 
probative value of a medical opinion are the physician's 
access to the claims file and the thoroughness and detail of 
the opinion).



For these reasons or bases, the most probative evidence 
weighs against the Veteran's claim of entitlement to service 
connection for left ear hearing loss.  Because the 
preponderance of the evidence is against the claim, service 
connection for left ear hearing loss is denied.  38 C.F.R. 
§ 3.303; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 
Alemany, supra.  

Increased Rating

Disability evaluations are determined by evaluating the 
extent to which a Veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities (Rating Schedule).  38 
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).

In evaluating a disability, the Board considers the current 
examination reports in light of the whole recorded history 
to ensure that the current rating accurately reflects the 
severity of the condition.  The Board has a duty to 
acknowledge and consider all regulations that are 
potentially applicable.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  The medical as well as industrial 
history is to be considered, and a full description of the 
effects of the disability upon ordinary activity is also 
required.  38 C.F.R. §§ 4.1, 4.2, 4.10.  A "staged" rating 
is appropriate for an increased-rating claim when the 
factual findings show distinct time periods when the 
service-connected disability exhibited symptoms that would 
warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 
505 (2007).

Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  
38 C.F.R. § 4.7.  All reasonable doubt material to the 
determination is resolved in the Veteran's favor.  38 C.F.R. 
§ 4.3.



In view of the number of atypical instances it is not 
expected, especially with the more fully described grades of 
disabilities, that all cases will show all the findings 
specified.  Findings sufficiently characteristic to identify 
the disease and the disability therefrom, and above all, 
coordination of rating with impairment of function will, 
however, be expected in all instances.  38 C.F.R. § 4.21.  

The schedular criteria, effective as of November 7, 1996, 
incorporate the American Psychiatric Association 's 
Diagnostic and Statistical Manual of Mental Disorders, 
Fourth Edition (DSM-IV).  38 C.F.R. §§ 4.125, 4.130, 
Diagnostic Code 9411.

A 50 percent rating is warranted for occupational and social 
impairment with reduced reliability and productivity due to 
such symptoms as:  flattened affect; circumstantial, 
circumlocutory, or stereotyped speech; panic attacks more 
than once a week; difficulty in understanding complex 
commands; impairment of short- and long-term memory (e.g., 
retention of only highly learned material, forgetting to 
compete tasks); impaired judgment; impaired abstract 
thinking; disturbances of motivation and mood; difficulty in 
establishing and maintaining effective work and social 
relationships.  Id.

A higher 70 percent rating requires occupational and social 
impairment with deficiencies in most areas, such as work, 
school, family relations, judgment, thinking, or mood, due 
to such symptoms as:  suicidal ideation; obsessional rituals 
which interfere with routine activities; speech 
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to 
function independently, appropriately and effectively; 
impaired impulse control (such as unprovoked irritability 
with periods of violence); spatial disorientation; neglect 
of personal appearance and hygiene; difficulty in adapting 
to stressful circumstances (including work or a work-like 
setting); and inability to establish and maintain effective 
relationships. Id. The criteria for a 70 percent rating are 
met if there are deficiencies in most of the areas of work, 
school, family relations, judgment, thinking, and mood.  
Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).



Whereas the highest possible schedular rating of 100 percent 
requires total occupational and social impairment due to 
such symptoms as:  gross impairment in thought processes or 
communication; persistent delusions or hallucinations; 
grossly inappropriate behavior; persistent danger of hurting 
self or others; intermittent inability to perform activities 
of daily living (including maintenance of minimal personal 
hygiene); disorientation to time or place; memory loss for 
names of close relatives, own occupation, or own name.  38 
C.F.R. 4.130, Diagnostic Code 9411.

In assessing the evidence of record, it is important to note 
that the Global Assessment of Functioning (GAF) scores have 
been considered.  The GAF score is a scaled rating 
reflecting the "psychological, social, and occupational 
functioning on a hypothetical continuum of mental health-
illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) 
(citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 
DISORDERS, 4th ed. (DSM-IV) at 32).

A GAF score of 39 to 40 indicates "some impairment in 
reality testing or communication (e.g., speech is at times 
illogical, obscure, or irrelevant) or major impairment in 
several areas, such as work or school, family relations, 
judgment, thinking, or mood (e.g., depressed man avoids 
friends, neglects family, and is unable to work; child 
frequently beats up other children, is defiant at home, and 
is failing at school)."  Id.  

A GAF score of 41-50 indicates "serious symptoms (e.g., 
suicidal ideation, severe obsessional rituals, frequent 
shoplifting) OR any serious impairment in social, 
occupational, or school functioning (e.g., no friends, 
unable to keep a job)."  Id.

A GAF score of 51-60 indicates "Moderate symptoms (e.g., 
flat affect and circumstantial speech, occasional panic 
attacks) OR moderate difficulty in social, occupational, or 
school functioning, (e.g., few friends, conflicts with peers 
or co-workers)."  Id.



GAF scores that are between 61 and 70 reflect some mild 
symptoms (e.g., depressed mood and mild insomnia) or some 
difficulty in social, occupational, or school functioning 
(e.g., occasional truancy, or theft within the household), 
but generally functioning pretty well, and has some 
meaningful interpersonal relationships.  Id.  

As evidenced by use of the phrase "such symptoms as", the 
list of symptoms in the rating criteria is meant to be mere 
examples of symptoms that would warrant a particular 
evaluation, so are not meant to be exhaustive, and the Board 
need not find all or even some of the symptoms to award a 
specific evaluation.  If the evidence shows the Veteran 
suffers symptoms or effects that cause occupational or 
social impairment equivalent to what would be caused by the 
symptoms listed in the diagnostic code, the appropriate 
equivalent rating will be assigned.  Mauerhan v. Principi, 
16 Vet. App. 436, 442-3 (2002).  The Federal Circuit Court 
has embraced the Mauerhan Court's interpretation of the 
criteria for rating psychiatric disabilities.  Sellers v. 
Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).  Although 
the Veteran's symptomatology is the primary consideration, 
the Veteran's level of impairment must be in "most areas" 
applicable to the relevant percentage rating criteria.  
Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 
2013).

Factual Background

The Veteran has a 50 percent rating for his PTSD.  38 C.F.R. 
§ 4.130, Diagnostic Code 9411.

In February 2008, the Veteran reported that his longest 
period of employment was for 32 years.  His most recent job 
was as a substitute teacher, and he reported that for the 
previous three years he had been working on a part-time 
basis.  He was also in receipt of a pension.  He had 
received treatment for alcohol and drug abuse, although the 
latter was less of a problem.  He reported significant 
problems getting along with his wife and child.  He reported 
serious anxiety and tension and that he was taking 
psychotropic medication.  He denied suicidal ideation as 
well as a history of attempts.  

An April 2008 note from MM, Ph.D., a private psychologist, 
indicated that the Veteran had episodes of significant 
depression.  He was anxious and uncomfortable in crowds.  He 
experienced sleep disturbances and nightmares, and he had 
frequent intrusive thoughts associated with his combat 
experiences.  He was hypervigilant and experienced guilt.  
There was episodic alcohol abuse, which caused considerable 
conflict in his relationships.  Dr. MM opined that a higher 
rating was warranted, to include a TDIU rating.

A June 2008 VA notation indicated that the Veteran was 
participating in a substance abuse therapy group.

In June and July 2008, the Veteran admitted himself for 
inpatient PTSD treatment.  The Veteran described feelings of 
isolation and apathy.  He could not tolerate losing.  The 
Veteran indicated that he had a low mood, and his ability to 
concentrate was poor.  He had poor sleep and experienced 
nightmares.  He had difficulty with chronic irritability.  
He was hypervigilant and highly anxious.  He felt detached 
from others, and his only significant attachment was to his 
spouse.  The Veteran had intrusive recollections of combat 
and suffered from flashbacks.  Running kept him "sane" and 
was a religion to him.  The Veteran was interested in 
running, reading, and writing.  The Veteran denied suicidal 
ideation but indicated that his drinking might have been a 
slow suicide wish.  He denied hallucination, delusions, or 
paranoia.  The Veteran stated that he was a retired mailman 
and currently worked as a substitute teacher on a part-time 
basis.  The Veteran had been involved in outpatient PTSD and 
substance abuse treatment.  On discharge, the diagnosis was 
of chronic PTSD, recurrent moderate major depressive 
disorder secondary to PTSD, and alcohol dependence that was 
in remission for approximately four months.  The examiner 
assessed a GAF score of 40 and indicated that the highest 
GAF applicable in the last year was 40.

In July 2008, the Veteran's wife wrote that the Veteran 
began to isolate himself from others by provoking them into 
confrontations.  The Veteran was unable to express emotion 
unless drinking.  The Veteran's drinking became much worse 
when he retired.  Several incidents that occurred during 
drunken episodes caused his daughter to prevent him from 
seeing his grandson.  During teaching assignments, the 
Veteran challenged students who "disrespected" him, and he 
was not invited back to teach at several schools.  The 
Veteran had trouble concentrating and had nightmares.  His 
sleep, however, had improved with medication.  The Veteran's 
wife suggested that the Veteran's PTSD in conjunction with 
his alcohol abuse had a negative impact upon his ability to 
work.

On September 2008 VA PTSD examination, the Veteran indicated 
that he was engaged in substitute teaching.  The Veteran 
admitted to drinking heavily on a weekly basis.  The Veteran 
indicated that he had a few friends and that he ran with his 
dog.  The Veteran asserted that he attended weekly support 
group meetings but did not consider himself a joiner.  The 
Veteran was dressed appropriately and well groomed.  He was 
fully oriented.  He was cooperative, displayed good eye 
contact, and his speech was clear and coherent.  There were 
no delusions, hallucinations, or other psychotic symptoms.  
Short term memory was good, but he complained of 
forgetfulness.  His mood was euphoric.  He laughed even when 
discussing traumatic events.  He perseverated on thoughts of 
combat.  His sleep was disturbed, and insight and judgment 
were poor.  He was anxious and hypervigilant.  The Veteran 
could become confrontational, even toward children, which 
happened during teaching.  He had difficulty getting along 
with others due to his short fuse.  The Veteran engaged in 
risky activities but denied being suicidal.  The Veteran was 
isolated and felt emotionally detached.  The examiner 
diagnosed chronic PTSD that he described as moderate, 
bipolar disorder 1, and alcohol dependence.  He assigned a 
GAF score of 50.  The examiner indicated that the Veteran 
was capable of handling his funds and that he was self 
medicating with alcohol.  She suggested that he had 
difficulty relating to others as well as rigid thinking and 
beliefs and that lack of anger control had an impact on his 
ability to work on a full-time basis.  Other symptoms had an 
impact socially.  The Veteran was experiencing difficulty 
adjusting to aging.  

In June 2009, the Veteran requested a note from a VA mental 
health professional stating that he was not suicidal or 
homicidal so that he could enter an in-patient VA PTSD 
treatment program.

An August 2009 letter from the therapists treating the 
Veteran's wife indicated that physical altercations between 
her and the Veteran were usually fueled by alcohol.

In October 2009, the Veteran entered the VA in-patient 
treatment program.  The Veteran reported that his most 
pressing issues were isolation and relational difficulties 
with his daughter.  The Veteran reported a history of 
several psychotropic medication.  On admission, however, he 
was not taking any medication, and he declined to use 
psychotropic medication during the admission.  The Veteran 
felt hopelessness and anhedonia.  His sleep was disturbed, 
and he had trouble concentrating.  The Veteran denied 
suicidal ideation but stated that his heavy alcohol use 
throughout the years may have been a slow death wish.  He 
indicated that he engaged in risky behavior when drinking to 
include becoming confrontational.  There was some 
psychomotor restlessness.  The examiner noted a history of 
previous in-patient admissions, but none was for acute care 
associated with PTSD.  The examiner noted as well that the 
Veteran pursued outpatient PTSD treatment for a number of 
years.  The Veteran admitted to excessive drinking although 
he denied alcohol use in the previous two months.  The 
Veteran's eye contact was good, his speech was normal, he 
was appropriately dressed and groomed, and there was no 
evidence of psychosis.  He had a restricted affect, 
dysphoric mood, and mild psychomotor agitation.  Insight and 
judgment were fair.  Memory and cognition were intact, and 
attention and concentration were adequate.  The diagnosis 
was of chronic PTSD, recurrent moderate major depressive 
disorder secondary to PTSD, and alcohol dependence in 
remission for two months.  The examiner assigned a GAF score 
of 40.

A November 2009 program treatment note indicated that the 
Veteran's reported PTSD symptoms severely impaired his 
ability to function socially and occupationally.  The note 
writer indicated that the Veteran's admission GAF score was 
40.

In a November 2009 statement, a VA addiction therapist who 
treated the Veteran during his in-patient stay.  The 
therapist indicated that the Veteran had physical 
altercations with his wife and that he was estranged from 
his daughter.  The addiction therapist indicated that the 
Veteran saw the program as a way to avoid some of his 
irrational suicidal thoughts.  The Veteran's reckless 
behavior included excessive drinking, occasional marijuana 
use, driving while intoxicated, blackouts, and 
combativeness.  The addiction therapist stated that the 
Veteran's behavior while drunk amounted to a form of 
suicide.  The addiction therapist opined that the Veteran 
was able to grasp treatment alternatives to drinking but 
resisted those options.  According to him, the Veteran could 
not be expected to obtain gainful employment due to his 
PTSD, substance abuse, and depression.

In November 2009, two other VA mental health professionals 
who treated the Veteran during his recent admission 
indicated that the Veteran experienced the full range of 
PTSD symptoms to include reexperiencing, avoidance of 
stimuli associated with painful experiences, increased 
arousal, numbing of general responsiveness, severe sleep 
disturbance, increased anxiety, an inability to maintain 
employment, and an inability to sustain meaningful 
relationships.  The Board notes that prior information in 
the claims file reveals that the Veteran has been married 
well in excess of 30 years.  The writers indicated that the 
Veteran's PTSD symptoms were severe since service in 
Vietnam.  

In a December 2009 written statement, the Veteran's wife 
spoke of the Veteran's drinking, lack of motivation, and 
isolation from family.  He drank and behaved inappropriately 
in the presence of his grandson.  He was extremely 
argumentative and experienced increased trouble sleeping.

An undated letter from a VA nurse practitioner indicated 
that due to the severity of the Veteran's PTSD, he was 
considered unemployable.  His GAF was estimated as 40, and 
agitation and frequent conflict with family were cited.  

According to a March 2010 VA progress note, the Veteran 
indicated that he was stable if he isolated himself.  He was 
no longer working as a substitute teacher because he had 
been in several confrontations with students.  The Veteran 
was on no medication and continued to run daily.  The 
Veteran was alert and well groomed.  Mood was dysphoric, and 
affect was congruent with mood.  The Veteran denied suicidal 
ideation.  There was no psychosis.  There was poor judgment 
with alcohol consumption.  Memory impairment was minimal.  
The diagnosis was of PTSD with chronic periodic alcohol 
abuse.

During a May 2010 VA psychiatric examination, the Veteran 
asserted that he was unemployable.  The Veteran stated that 
he had been drinking frequently and heavily in recent years.  
He was becoming more withdrawn, stopped running, and asked 
his wife to move to a remote area.  The Veteran was taking 
psychotropic medication.  On examination, the Veteran was 
unshaven and had long hair.  However, he was neatly dressed 
and displayed adequate hygiene.  Speech was normal, and the 
Veteran displayed good eye contact.  There was no sign of 
memory impairment.  The Veteran indicated that he was 
depressed but not hopeless.  He was motivated for treatment.  
He did not show any signs of agitation or restlessness, and 
the Veteran adamantly denied suicidal ideation.  The 
examiner diagnosed PTSD with periodic acute exacerbations 
and assigned a GAF score of 45.  The examiner stated that it 
was difficult to differentiate symptoms of PTSD from those 
of the nonservice-connected  psychiatric disorders.  The 
examiner indicated that alcohol use specifically was causing 
interpersonal problems with his wife and caused decreased 
motivation.  The Veteran was fully capable of handling his 
finances.  

In June 2010, the Veteran's GAF score was assessed as 55.  
He reported emotional distancing and reexperiencing.  

In July 2012, the Veteran's son in law wrote that the 
Veteran behaved inappropriately around his grandchildren and 
in a manner that frightened them.   

During his November 2012 hearing, the Veteran testified that 
he experienced panic attacks.  He stated that he would get 
disoriented and lost.  He stated that his anger management 
problems had intensified and that he had confrontations with 
students he was teaching.


Discussion

The Veteran's confrontational behavior has been linked to 
his alcohol abuse.  But to the extent his PTSD symptoms 
cannot be distinguished from other psychiatric diagnoses, 
the Board will consider the symptoms in question as part and 
parcel of his service-connected PTSD.  See Mittleider v. 
West, 11 Vet. App. 181, 182 (1998) (holding that when it is 
not possible to separate the effects of a service-connected 
disability and a nonservice-connected disability, reasonable 
doubt must be resolved in the appellant's favor and the 
symptoms in question attributed to the service-connected 
disability).

The Board finds that there was some hyperbole involved in 
the note of the VA addiction therapist.  For example, he 
spoke of suicidality when the Veteran has consistently 
denied suicidal ideation.  Indeed, just prior to admission 
he denied suicidal ideation and homicidal ideation.  While 
the Veteran might have likened his drinking to a "death 
wish," he does not appear to have ever contemplated or 
attempted suicide.  

That however notwithstanding, the Board finds that the 
Veteran's service-connected PTSD more nearly approximates 
the level necessary for a 70 percent disability evaluation.  
38 C.F.R. § 4.130, Diagnostic Code 9411.  

The Board recognizes that he does not suffer from suicidal 
ideation, obsessional rituals, abnormal speech, or an 
inability to function independently.  The record 
does however reflect impaired impulse control as 
demonstrated by his tendency to become confrontational and 
an inability to establish effective relationships as 
apparent from the statements from his wife and son in law.  
While he has suggested an inability to adapt to stressful 
circumstances, work-related conflict may well have been 
related to his abuse of alcohol.  In any event, the Board 
notes that he has been hospitalized twice during the appeal 
period, and inappropriate behavior or an inability to adapt 
to an inherently stressful situation was not shown.  He 
indicated that he had panic attacks while testifying during 
his hearing before the Board.  


There are no clinical records indicating panic attacks, 
however.  As well, he hinted at disorientation and needing 
his wife's help to get around, but there is no clinical 
evidence of that manifestation of mental illness in the 
record.  

Despite his apparent exaggeration of symptoms, at least to 
some extent, the Board finds that his symptoms are 
nonetheless sufficient to warrant a higher 70 percent 
evaluation, though not an even higher 100 percent 
evaluation.  The Board makes this finding based on his 
apparent isolation, with the exception of his wife, and 
due to his consistently low GAF scores showing mostly major 
or serious impairment in several areas.  Based on his 
credible symptomatology and GAF scores, the Board concludes 
that his PTSD disability picture more closely resembles that 
necessary for a 70 percent evaluation.  38 C.F.R. §§ 4.7, 
4.140, Diagnostic Code 9411.  The 70 percent evaluation is 
applicable throughout because his symptoms have been fairly 
consistent.  Hart, supra.

An even higher 100 percent evaluation is not warranted 
because the type of social and occupational impairment 
contemplated at this extreme level must be totally 
disabling.  He is not totally impaired in these arenas.  He 
is able to handle his finances independently.  He has 
exhibited sufficient insight to seek PTSD treatment.  His 
speech and thought processes have never been characterized 
as abnormal, and evidence of psychosis is completely absent.  
Furthermore, he is not in persistent danger of hurting 
himself or others.  His memory is intact, and there is no 
sign that he is unable to accomplish the activities of daily 
living independently.  The Board emphasizes that he 
apparently has been able to function adequately even during 
periods without psychotropic medication.  In short, 
therefore, the criteria for an even higher 100 percent 
evaluation are not met at any time during the appeal period.  
Id.; 38 C.F.R. §§ 4.7, 4.140, Diagnostic Code 9411.  

In making this determination, the Board has considered the 
provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but 
there is not such a state of approximate balance of the 
positive evidence with the negative evidence to otherwise 
warrant an even more favorable decision.



Extraschedular Consideration

In exceptional cases an extraschedular rating may be 
provided.  38 C.F.R. § 3.321 (2012).  The threshold factor 
for extraschedular consideration is a finding that the 
evidence before VA presents such an exceptional disability 
picture that the available schedular evaluations for that 
service-connected disability are inadequate. 

Therefore, initially, there must be a comparison between the 
level of severity and symptomatology of the claimant's 
service-connected disability with the established criteria 
found in the rating schedule for that disability.  Thun v. 
Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria 
reasonably describe the claimant's disability level and 
symptomatology, then the claimant's disability picture is 
contemplated by the rating schedule, the assigned schedular 
evaluation is, therefore, adequate, and no referral is 
required.  In the second step of the inquiry, however, if 
the schedular evaluation does not contemplate the claimant's 
level of disability and symptomatology and is found 
inadequate, the RO or Board must determine whether the 
claimant's exceptional disability picture exhibits other 
related factors such as those provided by the regulation as 
"governing norms."  
38 C.F.R. 3.321(b)(1) (related factors include "marked 
interference with employment" and "frequent periods of 
hospitalization").  When the rating schedule is inadequate 
to evaluate a claimant's disability picture and that picture 
has related factors such as marked interference with 
employment or frequent periods of hospitalization, then the 
case must be referred to the Under Secretary for Benefits or 
the Director of the Compensation and Pension Service for 
completion of the third step-a determination of whether, to 
accord justice, the claimant's disability picture requires 
the assignment of an extraschedular rating.  Id.  

In Mittleider, the Court held that the benefit-of-the-doubt 
applies to determinations of whether a symptom should be 
attributed to a service-connected condition.  Id. at 182.  
So, with this in mind, the Board has considered Mittleider 
and has attributed all potentially service-connected 
symptoms to one service-connected condition or another, in 
considering whether the Veteran is entitled to an 
extraschedular rating.

Turning to the first step of the extraschedular analysis 
articulated in Thun, the Board finds that the symptomatology 
and impairment caused by the Veteran's PTSD is specifically 
contemplated by the schedular rating criteria, so no 
referral for extraschedular consideration is required.  The 
schedular rating criteria, expressed in Diagnostic Code 
9411, specifically provide for disability ratings based on a 
combination of history and clinical findings.  In this case, 
considering the lay and medical evidence, the Veteran's PTSD 
has manifested in fraught relationships, isolation, sleep 
impairment, intrusive thoughts, avoidance of distressing 
stimuli, and occasional nightmares and flashbacks along with 
very material psychosocial impairment.  These symptoms and 
areas of impairment are either explicitly part of the 
schedular rating criteria or are "like or similar to" those 
symptoms and impairment explicitly listed in the schedular 
rating criteria.  Mauerhan, 16 Vet. App. at 443.  The levels 
of occupational and social impairment are also explicitly 
part of the schedular rating criteria.  Vazquez-Claudio, 
supra.  In addition, the GAF scores are incorporated as part 
of the schedular rating criteria as they tend to show the 
overall severity of symptomatology or overall degree of 
impairment in occupational and social functioning. 

The schedule is intended to compensate for average 
impairments in earning capacity resulting from service-
connected disability in civil occupations.  
38 U.S.C.A. § 1155.  "Generally, the degrees of disability 
specified [in the rating schedule] are considered adequate 
to compensate for considerable loss of working time from 
exacerbations or illnesses proportionate to the severity of 
the several grades of disability."  38 C.F.R. § 4.1.  In 
this case, the problems reported by the 
Veteran are specifically contemplated by the criteria 
discussed above, including the 
effect on his daily life.  In the absence of exceptional 
factors associated with an 
acquired psychiatric disorder, the Board finds that the 
criteria for submission for assignment of an extraschedular 
rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See 
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 
8 Vet. App. 218, 227 (1995).




ORDER

No new and material evidence having been received, the claim 
of entitlement to service connection for right ear hearing 
loss is not reopened and remains denied.

New and material evidence having been received, the claim of 
entitlement to service connection for left ear hearing loss 
is reopened.

But service connection for left ear hearing loss is denied.

A higher 70 percent rating is granted for the service-
connected PTSD, subject to the statutes and regulations 
governing the payment of VA compensation.


REMAND

A remand is required to ensure there is a complete record 
upon which to decide the Veteran's remaining claims.  VA has 
a duty to make reasonable efforts to assist him in obtaining 
evidence necessary to substantiate a claim for the benefit 
sought, unless no reasonable possibility exists that such 
assistance would aid in substantiating the claim.  38 
U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).

He claims entitlement to service connection for tinnitus.  
The record reveals, however, that VA denied entitlement to 
service connection for tinnitus in a prior March 2004 rating 
decision.  And as he did not perfect an appeal in response 
to that prior rating decision, it is a final and binding 
decision based on the evidence then of record.  38 U.S.C.A. 
§ 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 
20.1103.  So to reopen this claim and warrant further 
consideration of it on its underlying merits, there has to 
be new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. 
§ 3.156.

As already explained, VA has a duty to assist claimants in 
substantiating their claims for benefits.  This duty to 
assist often requires a VA examination for a medical 
opinion.  38 C.F.R. § 3.159(c)(4).  However, this regulation 
does not require that the appellant be provided a VA 
examination until new and material evidence has been 
submitted.  38 C.F.R. § 3.159(c)(4)(iii).  Notably, however, 
once VA undertakes the effort to provide an examination when 
developing a service-connection claim, even if not 
statutorily obligated to do so, it must provide an adequate 
one, else, notify the Veteran why one cannot or will not be 
provided.  See Barr, 21 Vet. App. at 312.

In this case, the Veteran was afforded a VA audiologic 
examination in December 2008.  The examiner indicated, in 
essence, that tinnitus had many potential etiologies and 
that she could not opine regarding the etiology of the 
Veteran's tinnitus "without resorting to mere speculation."  
But as already discussed, an examination report is not 
inadequate, per se, merely because an examiner concludes 
that he or she is unable to offer a nonspeculative opinion.  
Rather, the Court has held that, if an examiner concludes 
that a nonspeculative opinion cannot be offered, he or she 
must explain the basis for such a conclusion or the basis 
must otherwise be apparent from the evidence.  Jones v. 
Shinseki, 23 Vet. App. 382, 390 (2010).

Thus, to be adequate, more than a conclusion needs to be 
expressed by the examiner that the etiology of a particular 
condition is not known or is unknowable.  
Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Rather, a 
sufficient rationale and supporting explanation must be 
provided that address such matters as whether there is 
inadequate factual information, whether the question falls 
within the limits of current medical knowledge or scientific 
development, whether the cause of the condition in question 
is truly unknowable, and whether the question is so outside 
the norm of practice that it is really impossible for the 
examiner to use his or her medical expertise and training to 
arrive at an opinion.  Jones, supra (to rely on a statement 
that an opinion cannot be provided without resort to mere 
speculation, it must be clear that the procurable and 
assembled data was fully considered and the basis for the 
opinion must be provided by the examiner or be apparent upon 
a review of the record.)

Here, it is unclear from the record why the VA examiner 
could not provide a medical opinion without resorting to 
speculation.  The Board merely requires an opinion regarding 
whether it is at least as likely as not (50 percent or 
greater likelihood) that the Veteran's tinnitus is related 
to his service.  Thus, while there might be other potential 
causes, that question must still be answered unless a 
response is truly beyond the scope of current medical 
knowledge.  Because the December 2008 VA findings concerning 
tinnitus are inadequate, a new VA examination is in order.  
Moreover, because the additional matter of entitlement to a 
TDIU also is at issue, the examiner will be asked to opine 
regarding the impact of the tinnitus on employability.

Further concerning this derivative claim of entitlement to a 
TDIU, it, too, requires further information.  The Veteran 
alleges that he is unemployable due to his service-connected 
PTSD especially.  Indeed, that disability is now rated 
higher, 
as 70-percent disabling, as a result of this decision.  
However, the Board notes that a review of the record reveals 
the Veteran has a history of substance abuse and alcohol 
abuse in particular.  Most recently, he worked as a 
substitute teacher but quit for fear that he would become 
belligerent.  It is unclear whether his reluctance to teach 
stems from PTSD symptoms or from other nonservice-connected 
symptoms such as those related to his alcohol abuse or other 
nonservice-connected conditions.

As a general proposition, no compensation shall be paid if 
the disability resulting from injury or disease in service 
is a result of the Veteran's willful misconduct or abuse of 
alcohol or drugs.  38 U.S.C.A. §§ 105, 1110.  Direct service 
connection may be granted only when a disability was 
incurred or aggravated in the line of duty, and not the 
result of the Veteran's willful misconduct or, for claims 
filed after October 31, 1990, the result of his abuse of 
alcohol or drugs.  38 C.F.R. § 3.301.



Regarding drug usage, the isolated and infrequent use of 
drugs by itself will not be considered willful misconduct; 
however, the progressive and frequent use of drugs to the 
point of addiction will be considered willful misconduct.  
Where drugs are used to enjoy or experience their effects 
and the effects result proximately and immediately in 
disability or death, such disability or death will be 
considered the result of the person's willful misconduct.  
Organic diseases and disabilities that are a secondary 
result of the chronic use of drugs and infections coinciding 
with the injection of drugs will not be considered of 
willful misconduct origin.  (See paragraph (d) of this 
section regarding service connection where disability is a 
result of abuse of drugs.).  Where drugs are used for 
therapeutic purposes or where use of drugs or addiction 
thereto, results from a service-connected disability, it 
will not be considered of misconduct origin.  38 C.F.R. § 
3.301(c)(3).

So disability resulting from alcohol or drug abuse, since it 
is willful misconduct, generally cannot be service 
connected.  38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m) and 
(n), 3.301(d), 3.303(c)(3) and (d).  VA's General Counsel 
has confirmed that direct service connection for disability 
or death that is a result of abuse of alcohol or drugs is 
precluded for purposes of all VA benefits for a claim, as 
here, filed after October 31, 1990.  See VAOPGCPREC 7-99 
(June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998).

There is a very limited exception to this general rule.  In 
Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the 
Federal Circuit Court held that compensation could not be 
awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 
105(a) either for a primary alcohol/drug abuse disability 
incurred during service or for any secondary disability that 
resulted from primary alcohol/drug abuse during service. 
Id., at 1376.  However, the Federal Circuit Court further 
held that there can be service connection for compensation 
for an alcohol/drug abuse disability acquired as secondary 
to, or as a symptom of, a non-willful misconduct, service-
connected disability.  But in further clarifying this, the 
Federal Circuit Court explained that claimants may only 
recover if they can adequately establish that the alcohol or 
drug abuse disability is secondary to or is caused by their 
primary service-connected disorder.  Id., at 1381.  


An award of compensation on such a basis would only result 
where there is clear medical evidence establishing that the 
alcohol or drug abuse disability is indeed caused by a 
Veteran's primary service-connected disability, and where 
the alcohol or drug abuse disability is not due to willful 
wrongdoing.  Id.

To summarize, where drug and alcohol abuse is at issue, 
service connection is precluded "in two situations:  (1) for 
primary alcohol abuse disabilities; and (2) for secondary 
disabilities (such as cirrhosis of the liver) that result 
from primary alcohol abuse."  Allen, 237 F.3d at1376.  
Service connection is not precluded if alcohol abuse is 
secondary to a service-connected disability [such as, here, 
PTSD.] Id.  Even if a Veteran has a service-connected 
disability, however, service connection would be precluded 
for the alcohol or drug abuse disability if it is actually 
due to willful action rather than the result of the service-
connected disability.  Id., at 1378.

As it stands, the record contains no comprehensive 
examination and opinion regarding whether the Veteran's 
service-connected PTSD, in and of itself, prevents him from 
securing or following a substantially gainful occupation.  
See generally 38 C.F.R. § 4.16(a) (2012).  An examination 
with an opinion answering this question is necessary.

To ensure the record is complete, VA clinical records dated 
from July 14, 2011 to the present must be obtained and 
associated with the claims file for consideration.  See 38 
C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 
81-82 (1990) (holding that all VA treatment records that 
could potentially be helpful in resolving a claim must be 
obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) 
(records generated by VA facilities that may have an impact 
on the adjudication of a claim are considered in the 
constructive possession of VA adjudicators during the 
consideration of a claim, regardless of whether those 
records are physically on file).



Accordingly, these remaining claims are REMANDED for the 
following additional development and consideration:

1.  Obtain and associate with the claims 
file all VA clinical records dated from 
July 14, 2011 to the present.  Since these 
records are in the custody of a Federal 
department or agency, namely VA, the 
attempts to obtain them are governed by 38 
C.F.R. § 3.159(c)(2).  Thus, make as many 
attempts to obtain these records 
(assuming they exist) as are necessary 
according to this VA regulation.  Also 
appropriately notify the Veteran if unable 
to obtain these records after the required 
attempts.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional 
records, schedule an appropriate VA 
examination to determine whether the 
Veteran's tinnitus is at least as likely 
as not (50 percent or greater likelihood) 
related or attributable to his military 
service.  Based on what the prior VA 
compensation examiner indicated, the Board 
is aware that there are a number of 
possible causes of tinnitus.  The 
examiner, however, must make all efforts 
to respond to the Board's inquiry 
regarding this determinative issue of 
etiology.

The term "at least as likely as not" does 
not mean merely within the realm of 
medical possibility, rather, that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is as medically sound to find in 
favor of causation as it is to find 
against it.



Because the Veteran also is claiming 
entitlement to a TDIU, if the examiner 
finds that the Veteran's tinnitus is at 
least as likely as not related to his 
military service, i.e., a service-
connected disability in addition to his 
PTSD, then the examiner must provide an 
opinion regarding the impact if any of the 
tinnitus on employability when considered 
in combination with the PTSD.

Explanatory rationale for all opinions and 
conclusions must be provided.  The 
examination report must indicate whether 
pertinent records in the claims file were 
reviewed in conjunction with the 
examination.  In the event that an opinion 
cannot be rendered without resorting to 
speculation, the examiner should explain 
why it would be speculative to respond and 
why an answer would be beyond the scope of 
current medical knowledge.  So merely 
indicating he/she cannot respond will not 
suffice.

3.  Also schedule a VA medical examination 
for an opinion regarding whether it is at 
least as likely as not (50 percent or 
greater likelihood) that the Veteran's 
service-connected PTSD, in and of itself, 
prevents him from obtaining or maintaining 
employment that could be considered 
substantially gainful versus just marginal 
in comparison.

To reiterate, the term "at least as likely 
as not" does not mean merely within the 
realm of medical possibility, rather, that 
the weight of medical evidence both for 
and against a conclusion is so evenly 
divided that it is as medically sound to 
find in favor of that conclusion as it is 
to find against it.

Explanatory rationale for all opinions and 
conclusions must be provided.  The 
examination report must indicate whether 
pertinent records in the claims file were 
reviewed in conjunction with the 
examination.  In the event that an opinion 
cannot be rendered without resorting to 
speculation, the examiner should explain 
why it would be speculative to respond and 
why an answer would be beyond the scope of 
current medical knowledge.  So merely 
indicating he/she cannot respond will not 
suffice.

4.  After completing the requested action, 
and any additional notification and/or 
development deemed warranted, readjudicate 
these remaining claims in light of all the 
evidence of record.  If these remaining 
claims continue to be denied, send the 
Veteran and his representative an SSOC and 
give them time to submit additional 
evidence and/or argument in response 
before returning the file to the Board for 
further appellate consideration of these 
claims.

The Veteran has the right to submit additional evidence and 
argument concerning these claims the Board is remanding.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).



These claims must be afforded expeditious treatment.  The 
law requires that all claims that are remanded by the Board 
or by the Court 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs