Citation Nr: 1335092 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-18 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from September 1957 to February 1964 and September 1964 to April 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection 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 The Veteran's bilateral tinnitus is causally and etiologically related to his noise exposure during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of this claim. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to that issue. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. " Credible evidence" is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Tinnitus The Veteran contends that he has tinnitus that is related to his in-service noise exposure, to include during combat situations in the Republic of Vietnam. Although the Veteran's service treatment records are negative for complaints of or treatment for tinnitus, as a combat Veteran, his assertions concerning in-service noise exposure are to be presumed accurate because they are consistent with the time, place and circumstances of such service. 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). As such, in-service noise exposure, as described by the Veteran, is presumed. The January 2010 VA audiological examination report reflects a diagnosis of bilateral tinnitus. Also, in an August 2009 statement, Dr. Underwood, a private audiologist, noted the Veteran's complaints of bilateral tinnitus. The Veteran is competent to report such symptoms as ringing in his ears that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The January 2010 examiner noted that the Veteran reported experiencing tinnitus for "the past 3-4 years" and opined that the Veteran's tinnitus was less likely than not related to his in-service noise exposure. However, Dr. Underwood noted the Veteran's complaint of tinnitus and history of in-service noise exposure, and opined that his tinnitus is most likely a result of his military noise exposure. Unlike Dr. Underwood, the January 2010 VA examiner had the benefit of reviewing the Veteran's complete claims file in rendering the unfavorable opinion. However, the Board notes that both audiologists (VA and private) based their opinions on a factually accurate background. Therefore, the Board finds that the evidence is in relative equipoise regarding the question of whether the Veteran's bilateral tinnitus is causally related to his noise exposure during service. In cases such as this, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND Under the laws and regulations governing service connection claims for PTSD, a valid PTSD diagnosis must be rendered under the diagnostic criteria for the condition as set forth in the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Despite such diagnoses in February 2009 and May 2009, the April 2010 VA examiner stated that the Veteran did not, at that time, meet the diagnostic criteria under the DSM-IV for this diagnosis. However, this statement was not reconciled with the earlier treatment records showing a valid PTSD diagnosis. To the extent that the evidence shows a valid PTSD diagnosis during the appeal period, the United States Court of Appeals for Veterans Claims (the Court) has held that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, a remand is necessary so that VA may obtain an adequate opinion addressing whether the Veteran had PTSD resulting from his stressor events at any point during the appeal period. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA records for the Veteran from the VA North Florida/South Georgia Veterans Health System dated from April 2010 to the present, to specifically include records from the VA Community Based Outpatient Clinic (CBOC) in St. Augustine, Florida 2. Thereafter, schedule the Veteran for a VA psychiatric examination to determine whether the Veteran met the criteria for PTSD at any point during the claim or appeal period, and if so, whether such was related to his service, to include his in-service stressor(s). The claims file must be made available to the examiner in conjunction with the examination. After examination of the Veteran and a review of the claims file, the examiner must address the following: a. Provide an opinion addressing whether the Veteran met the DSM-IV criteria for a PTSD diagnosis at any time since July 2009 (the date he filed the present claim). In providing this opinion, the examiner must address the multiple multi-Axis diagnoses of PTSD reflected in the VA treatment records (August 2007, February 2009 and May 2009). b. If the Veteran met the criteria for a DSM-IV diagnosis of PTSD at any time during the appeal period (since July 2009), provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that this disability is related to the Veteran's service from, including his one-year tour of duty in Vietnam? c. If any psychiatric disability other than PTSD is diagnosed, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that that disability was caused by service or is otherwise related to service. In providing an opinion, the examiner is asked to consider, and comment as necessary, on the evidence of record reflecting positive PTSD screens, prior DSM-IV diagnoses of PTSD, and the evidence showing that the Veteran did not meet the criteria for such a diagnosis. All opinions expressed must be supported by a complete rationale. 3. After the completion of the above development, adjudicate the claim of entitlement to service connection for PTSD (or other diagnosed psychiatric disability) taking into consideration all evidence added to the file since the last supplemental statement of the case. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs