Citation Nr: 1335604 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-16 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to February 5, 2009. 2. Entitlement to an initial compensable rating for residuals of a shell fragment wound to the right forearm. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1973. He earned a Bronze Star Medal for his service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran has since moved to Pennsylvania. The December 2006 rating decision granted the Veteran service connection for PTSD, assigning him a 10 percent rating effective from December 5, 2005. Thereafter, a subsequent April 2009 rating decision increased the rating to 50 percent, effective from December 15, 2008. A February 2010 rating decision assigned a retroactive effective date of the 50 percent PTSD rating to December 7, 2005 and assigned a 70 percent rating, effective from February 5, 2009. Regardless of the RO's actions, the issue remains before the Board because the increased ratings were not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, the Board notes that during the appellate time period the Veteran also initiated a claim for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. An August 2011 statement of the case (SOC) continued to deny the issues. While the Board notes that a December 2011 substantive appeal is of record, such receipt was well beyond the statutory timeframe permitted to appeal the August 2011 SOC. 38 C.F.R. § 20.302(b). As such, the issues are not on appeal. In addition, the Board notes a total disability rating based on individual unemployability (TDIU) was granted in an August 2011 rating decision, effective from December 15, 2008, and the claims file does not indicate the Veteran has since expressed a desire to appeal the effective date assigned as required pursuant to 38 C.F.R. § 20.1103. Therefore, the issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). This appeal was previously before the Board in March 2012. The Board denied entitlement to an initial rating in excess of 50 percent for PTSD, and denied entitlement to an initial compensable rating for residuals of a shell fragment wound to the right forearm. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 joint motion to remand (JMR), the Court vacated the March 2012 Board decisions and remanded the matter for further development. In the March 2012 decision, the Board additionally remanded the issues of entitlement to service connection for hearing loss and tinnitus. In January 2013, the RO granted entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus remains on appeal. The issues of entitlement to an initial compensable rating for residuals of a shell fragment wound to the right forearm and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Providing the Veteran with the benefit of the doubt, for the period prior to February 5, 2009, the Veteran's PTSD was manifest by total occupational and social impairment. CONCLUSION OF LAW For the period prior to February 5, 2009, the criteria for an initial rating of 100 percent for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the Board's favorable disposition of the claim for an initial increased rating for PTSD, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's disabilities. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The applicable rating criteria for evaluating PTSD provide for 50 percent disability rating requires 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A Global Assessment of Functioning rating is a scale 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 the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). Global assessment of functioning scores ranging between 61 to 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. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See also 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Factual Background and Analysis The JMR found that the Board's March 2012 decision provided an inadequate statement of reasons or bases for denying an initial rating in excess of 50 percent for PTSD, prior to February 5, 2009. Specifically, in the March 2012 decision, the Board noted that the Veteran did not have "severe or total social and occupational impairment." The regulatory criteria do not specifically require "severe" social and occupational impairment, but instead requires "evidence of occupational and social impairment with deficiencies in most areas." Additionally, the JMR found that the Board did not address whether the evidence of the Veteran's occupational impairment due to PTSD, which was stated in the February 2009 VA examination, could be used to show that a higher rating was warranted prior to February 5, 2009. The Court has held that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 147 (2010) (citing McGrath v. Gober, 14 Vet. App. 28, 35(2000) (finding the Board erred when it assigned a 1994 effective date based upon a 1994 medical opinion even though the information in the medical opinion supported a 1992 effective date.)) In December 2005, the Veteran filed a claim of entitlement to service connection for PTSD. In July 2006, the Veteran provided stressor statements. An October 2006 memorandum verified his reported stressors. Also in July 2006, he reported that since his tour of duty in Vietnam he has been unable to interact well with groups of people and is frightened by sudden loud noises. He reported that, at times, he only "wants to be alone where it is quite." The Veteran was afforded a VA PTSD examination in December 2006. The examiner noted review of the claims file and medical records. The Veteran reported a 25-year marriage to his second wife and that his first marriage failed because she "loved her horse more than me." The Veteran described himself as asocial. He had worked as a charter pilot for 15 years, but left because it was "unsatisfying and too demanding," and thereafter had worked around horses in various capacities. He had not worked since selling his horses and carriages, other than an occasional odd job. Current psychiatric symptoms included, disturbing memories, past flashbacks, avoidance behavior, feelings of detachment, and problems interacting socially that included employer/employee relationships. He reported he did not "fit in," and was not liked by his employees, who considered him "not a nice guy." On mental status evaluation, the Veteran had a normal appearance and eye contact and was alert, cooperative and friendly, and fully oriented. His speech was normal, as were his thought processes and content. He denied hallucinations. The Veteran's mood and affect were normal and memory and concentration were unimpaired. Insight and judgment were partially impaired, but impulse control was adequate. He denied suicidal ideation. The examiner indicated that the Veteran met the DSM-IV criteria for PTSD and diagnosed PTSD, chronic type, with an assigned GAF score of 68. The examiner indicated that the Veteran was capable of being employed without significant impairment. In a December 2006 rating decision, the Veteran was granted entitlement to service connection for PTSD, with an initial 10 percent rating, effective December 5, 2005. In January 2007, the Veteran filed a notice of disagreement with this initial rating, stating his PTSD "should be at least 30 percent." In a January 2008 VA treatment record, the Veteran was noted to have undergone a craniotomy in 1983, but that he retained a "good memory" and no neurological deficits. He was again noted to have a "good memory" in April 2008 and January 2009. In May 2008, the Veteran had a negative depression screening due to denying a loss of interest or pleasure in things, and denying feeling down depressed or hopeless in the prior two weeks. In February 2009, the Veteran was afforded a second VA PTSD examination. His claims file was not available or reviewed by the examiner in conjunction with the examination. At that time, he reported a 10-year post-service work history as a pilot and later as a chauffeur where he "had to work alone." The Veteran claimed to have missed 7 to 8 days per month due to the PTSD symptoms and was forced to quit working due to these increasing symptoms, including isolation, depression, irritability, and inability to work with coworkers and supervisors. He indicated that his first marriage lasted about 12 years and ended due to his PTSD symptoms. The Veteran's second marriage was ongoing. On mental status evaluation, the Veteran was fully oriented, but distant with a sad and anxious affect. His speech was coherent and relevant, but with evidence of psychomotor slowing. Judgment was poor. The Veteran denied homicidal ideation or hallucinations. The assessment was PTSD and the examiner assigned a GAF score of 30. The examiner indicated that the loss of work structure after leaving work in 2006 had increased the Veteran's symptoms, along with war news. The Veteran noted symptoms of isolation, hypervigilence, irritability, depression, inability to work with others or supervisors, poor concentration, and very poor social functioning. The Veteran was afforded yet another VA PTSD examination in April 2010. The examiner noted review of the claims file. The Veteran reported work as a pilot for 10 years and subsequent work as a horse and buggy driver, where he missed 7 to 8 days of week per month due to his PTSD symptoms until he was forced to stop working in 2007. He indicated that his first marriage lasted about 12 years and ended due to his PTSD symptoms. The Veteran's second marriage was ongoing. His symptoms included, flashbacks triggered by loud noises, fireworks, and helicopter sounds, as well as sleep problems, hypervigilence, loss of interest, social isolation, irritability to the point of getting into verbal altercations, and suicidal ideation without any attempts. On mental status evaluation, the Veteran was fully oriented and had good recent and remote memory, but was unshaven and unkempt and had extremely poor concentration. He was distant with a sad and anxious affect. Speech was coherent and relevant, but with evidence of psychomotor slowing. Judgment was poor. The Veteran denied homicidal ideation or hallucinations. The assessment was PTSD and the examiner assigned a GAF score of 30. The examiner indicated that the loss of work structure after leaving work in 2006 had increased the Veteran's symptoms, along with war news. The examiner noted symptoms of isolation, hypervigilence, irritability, depression, anxiety, inability to work with others or supervisors, difficulty following orders, inability to follow simple instructions, poor concentration, passive suicidal thoughts, and very poor social functioning. These symptoms, the examiner opined, prevented the Veteran from performing activities consistent with his work experience and prior training or education. In May 2010, the Veteran's Social Security Administration (SSA) disability records, to include private treatment records, were received by the VA. SSA records include documentation of a serious head injury in 1983 which the Veteran did not report to VA examiners. The Veteran was granted SSA disability benefits for late effects of injuries to the nervous system and organic mental disorders (chronic brain syndrome). Private medical records reveal that on January 17, 1983, the Veteran was struck in the head by a propeller blade, and underwent a bifrontal craniotomy and right frontal lobe tip excision with evacuation of an intracerebral hematoma and placement of periosteal dural-free intrapositional graft. A CT scan revealed bifrontal and right anterior lobe contusions with mass effect on lateral ventricle. Ten days later, the Veteran did not know the date, and had short-term memory impairment. He was noted to have "a short attention span with defect in recent memory. There is no dysarthria or aphasia but the [Veteran spoke] only when spoken to and then in short sentences." By February 1983, the Veteran had some improvement in his memory, although it remained impaired. He then underwent a second operation, to replace the bilateral frontal bone flap. In March 1983, he was assessed with status post right frontal hematoma, status post evacuation and mild cognitive deficits secondary to the hematoma and evacuation An April 1994 neuropsychological evaluation noted that testing revealed deficits in visual/spatial problem solving and visual/spatial memory. By May 1983, he had only mild short-term memory deficit and minimally-reduced high-level verbal cognitive skills. In November 1987, the Veteran had a psychiatric evaluation who reported his main problem was that he was unable to get back to work because he had not yet been able to get his pilot's license back after his accident. He reported he was depressed because he had been unable to return to work and had gained weight. He stated he was unhappy about his financial situation. He felt his functioning was back to pre-accident levels and was upset he was being denied his pilot's license. The private psychiatrist found that the Veteran did not suffer from any major psychiatric condition of an affective, anxiety or thought disorder. Later, the same private physician diagnosed the Veteran with mild organic brain syndrome secondary to brain trauma caused by the 1983 accident. The syndrome "involves memory deficits." In November 1991, the Veteran underwent a psychiatric examination in conjunction with his disability claim. He reported that after his brain injury he underwent physical therapy, speech therapy and occupational therapy for several months. He again stated he felt he was back to full health and wanted his pilot's license back, and that flying was "all [he] knows how to do." He stated he had just received a promotion and that things were "going [his] way" when the accident occurred. He was very angry that he could no longer take care of his family. His speech was normal during the evaluation, but he continued to have memory problems. He was diagnosed with "mild organic brain syndrome secondary to 1983 brain injury, which required neurosurgery and rehabilitation therapy." In May 1994, the Veteran underwent neuropsychological testing in conjunction with his SSA disability claim. He reported he had never received psychiatric care prior to his head injury, and that he had never received care from the VA. He reported his problems were "very poor short-term memory and personality problems." He described his behavior as irritable, "flying off the handle, telling people off, curt, short and nervous." He reported these "personality changes" have made it difficult for him to get along with his wife and children, and have resulted in "alienating people who do not understand the nature of his injuries and his background." He reported that his "whole identity and life was as a pilot" and that his life has been taken away from him since his injury. "He has been unable to be gainfully employed since [the injury], and has expressed frustration at his inability to support his wife and children appropriately since his injury." Testing revealed depression and an problematic interpersonal behavior. The Veteran was "typically outgoing, but lack awareness or sensitivity to the effects of his temper on people around him." He stated that he felt supported at home, but that outside of his home environment he feels intensely angry, hostile and resentful of others. Testing also revealed that his motor coordination was slow and awkward, he had difficulty recollecting visual/spatial material for immediate recall, and he had "moderately severe impairments for immediate and short-term verbal memory." He had "some difficulty in grasping cause and effect relationships." Otherwise his verbal and intelligence testing was normal. He was diagnosed with organic mental disorder (Axis I) and organic personality disorder, explosive type (Axis II) due to his January 17, 1983 head trauma. In October 1995, the Veteran's wife provided a statement to SSA in support of his disability claim. She reported that he could take care of himself in regard to his hygiene and grooming, but that he could not cook anymore. "He used to be able to but since after the injury 01/17/1983, he has not been able to do this anymore." He helped to feed horses and provided hay and carriage rides for the business during "high season." She indicated his concentration and comprehension were brief, and his memory was "very, very poor." She reported he would forget where he placed items and would forget to even feed his children, resulting in arguments with his wife. She noted that he had "been like this since after he was injured in '93 [sic] to the present time." On his disability report, the Veteran noted he was unable to work due to memory loss, frustration levels, his inability to "deal" socially, and anger. He stated he had not "recovered emotionally." He noted that his condition began January 17, 1983. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board has concerns regarding the credibility of some of the Veteran's reports during VA examinations. During his 2006 VA examination he indicated he and his first wife divorced because she "loved her horse more than" him. After he appealed his initial 10 percent rating he reported his first marriage dissolved due to his "PTSD symptoms." During his 2006 VA examination he reported he left his career as a pilot because the job was unfulfilling and too demanding. A review of subsequently received SSA disability records, including private treatment records from the 1980s and 1990s, reveals that the Veteran suffered brain trauma after a propeller hit him in the head during work. The injury was so severe he required surgery and rehabilitation, and he was deemed unable to fly again due to vision, memory and cognition difficulties. The records also recount how much the Veteran loved his job as a pilot, and how his depression began as a result of not being able to return to work. The Veteran also reported that his PTSD symptoms caused him to be unable to get along with coworkers due to his irritability, but the private treatment records reveal that prior to his head injury he had just received a promotion at work. The Board also recognizes that the February 2009 examiner's notation that the Veteran was forced to quit his employment as a chauffeur due to increasing PTSD symptoms, "including isolation, depression, irritability and inability to work with coworkers and supervisors," and that the loss of work structure after leaving work in 2006, along with war news, had only increased the Veteran's symptoms. The Veteran has argued that his statement to the 2009 VA examiner that he had to quit his employment in 2006 due to his PTSD symptoms, should be sufficient to warrant a 70 or 100 percent rating for the period prior to February 5, 2009. The Board also notes that on his August 2010 claim for total disability based on individual unemployability that he stated he last worked in 2002. Given the Veteran's noted cognitive difficulties, and his varied answers regarding when he was last employed, the Board does not have a definitive date of last employment. The 2009 VA examiner has stated that he quit his employment in 2006 due to his PTSD symptoms. The Veteran filed the current claim on appeal on December 7, 2005. As the evidence of record does not provide the Board with a definitive date for the beginning of the Veteran's total occupational and social impairment of PTSD, a grant of 100 percent from the initial claim date is provided. Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Additionally, the claims file does not contain any treatment records in the year proceeding December 7, 2005 which are related to the Veteran's claim for PTSD. As December 7, 2005 is the earliest effective date for a rating for his PTSD, then providing the 100 percent effective December 7, 2005 represents a full grant of the issue on appeal. In summary, the Veteran has been provided with the benefit of the doubt and is being awarded a 100 percent rating for his PTSD from the date of his claim (December 7, 2005). This represents a full grant of the benefit sought by the Veteran. ORDER Entitlement to an initial rating of 100 percent for PTSD, for the period prior to February 5, 2009, is granted. REMAND Tinnitus The Veteran's representative argues that a new VA examination should be provided, and the nexus opinion should address secondary service connection for tinnitus now that the Veteran has been granted entitlement to service connection for hearing loss. The Board notes that the 2009 and 2012 VA audio examinations did not include a full occupational history for the Veteran. In 2009, when asked about his social and occupational noise exposure, the Veteran indicated he did not have any noise exposure from his work with the horse carriage business. He did not report that he worked as a pilot for 10 years after service. He also did not report his severe head trauma in 1983 to either examiner. The 2009 and 2012 examiners' noted the Veteran report that his tinnitus began in the 1990s as supporting a negative nexus opinion. The Board notes that during his May 1994 neuropsychological evaluation, the Veteran reported somatic symptoms including feeling weak much of the time and having problems with his hearing ringing or buzzing. On remand, the Veteran should be provided with secondary service connection notice, and should be scheduled for a new VA examination and opinion. Shell fragment wound The Veteran was afforded VA examinations in November 2006 and April 2010 regarding his shell fragment wound residuals. The November 2006 examination provided information for three scars on the Veteran's forearm. The April 2010 VA examination only provided information on one scar. As the results of the examinations are inconsistent, the claim must be remanded for another examination. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the veteran should be informed of how to establish his claim of secondary service connection under 38 C.F.R. § 3.310. 2. Schedule a VA audio examination to address the Veteran's claim of entitlement to service connection for tinnitus. The claims file and access to Virtual VA should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting all appropriate diagnostic and physical testing, and obtaining a complete history from the Veteran, the examiner should opine: a. Whether the Veteran's tinnitus is at least as likely as not (a 50/50 probability or greater) due to his service. The examiner should address the Veteran's argument that his tinnitus is due to service, but that symptoms only manifested in the 1990s. b. Whether the Veteran's tinnitus is at least as likely as not (a 50/50 probability or greater) due to his service-connected hearing loss. The examiner should review the SSA records which include private treatment records for a 1983 head trauma. Complete rationales should be provided for each opinion. 2. Schedule the Veteran for an appropriate VA examination for his claimed compensable rating for residuals of a gunshot wound to the right forearm. The claims file and access to Virtual VA should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should fully document the Veteran's right forearm scar or scars. Notably, the 2006 and 2010 examinations are contradictory. The 2006 examination lists three scars, and the 2010 examination addresses one scar. The examiner should address this disparity. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs