Citation Nr: 1336227 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-23 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected chronic prostatitis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Claim for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized that issue. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In October 2008, the RO granted an increased rating for chronic prostatitis and assigned a 10 percent rating effective January 18, 2008. Subsequently in October 2008, the Veteran submitted a timely notice of disagreement (NOD) disputing the disability rating assigned stating that his disability warranted a 20 percent rating. In June 2009, the RO granted a disability rating of 20 percent effective January 18, 2008 and stated that this action granted the benefits sought in the NOD, which is considered withdrawn for this issue. In October 2013, the Veteran's representative submitted an informal hearing presentation in support of the Veteran's claims they considered on appeal, which included the claim for an increased rating for prostatitis. The RO has not issued a statement of the case (SOC) for this issue and no appeal has been perfected. There is no indication that the Veteran has withdrawn his NOD for an increased rating for chronic prostatitis and the Veteran's October 2008 NOD did not state that a 20 percent disability rating would satisfy his claim; therefore, the RO incorrectly considered the Veteran's NOD withdrawn. Where a notice of disagreement has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran contends that his bilateral hearing loss and tinnitus developed as a result of noise exposure from jet aircraft while serving as a military air policeman during service. His DD 214 shows that he was a security policeman. His personnel records show that he served as an aircraft security guard at Ellsworth Air Force Base and as a security policeman at Ubon Air Force Base in Thailand. His service treatment records show a threshold shift in the Veteran's hearing acuity from entrance to separation. On entrance, the Veteran exhibited no hearing loss. On separation, the Veteran's hearing threshold was 15 for frequencies 500, 1000, 2000, 3000, 4000 Hertz in both ears. The Veteran reports that while he was assigned to guard the flight line, and he was exposed to acoustic trauma from the jets during testing and emergency take-offs. He reports that he had not been exposed to loud noise at any other time in his life and has suffered from constant ringing since service. However, the Veteran stated during private treatment in June 2008 that he was a retired sheriff's officer. Although the Veteran does have some hearing loss, post-service treatment records do not show that he currently has a hearing loss disability according to VA standards. The Veteran was diagnosed as having tinnitus during a February 2008 private audiology evaluation. At that evaluation it was also indicated that the Veteran's hearing loss could be caused by military noise exposure. In November 2009 the Veteran stated that he was being treated for his hearing loss and tinnitus at a VA medical center (VAMC) in Florida. In December 2009 he stated that he underwent a VA audiology evaluation on December 9, 2009, at the VAMC in West Palm Beach, Florida. As this evaluation is not of record and his most recent treatment records are current only as of May 2009, a remand is necessary to obtain the Veteran's complete VA treatment records. An examination is also necessary in order to determine if the Veteran currently has a hearing loss disability according to VA standards and, whether any current hearing loss disability and tinnitus are related to service. 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). The Veteran contends that he has been diagnosed as having PTSD that was caused by stressors during service. Post-service treatment records show that the Veteran was diagnosed as having PTSD and dysthymia during a June 2008 private psychosocial evaluation. The Veteran reported at that time that his base in Thailand was not attacked, but was frequently under threat of sniper attacks. The private social worker stated that the Veteran was in an area of Thailand that was involved in the Vietnam conflict and he had traumatic conditioning over a long period of time that led to symptoms of PTSD. The Veteran denied having any experience during his career as a sheriff's officer that could cause his PTSD symptoms. In a June 2008 statement, the Veteran reported two stressful events. The first is that after he left Thailand, he was informed that a good friend of his, who was part of the Thai army, was brutally killed. The second stressful event was that the Veteran caught a member of the Viet Cong who had broken through their perimeter. The Veteran later heard that the Thai police threw him out of a helicopter. The U.S. Army and Joint Services Records Research Center (JSRRC) stated in a September 2008 formal finding that the information to corroborate the stressors was insufficient. In light of the June 2008 diagnoses and findings, an examination is necessary to determine whether any current psychiatric disorder(s) is related to service. 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC with respect to his claim seeking an increased rating for chronic prostatitis, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 2. Request that the Veteran identify any outstanding and pertinent private treatment records pertaining to his hearing loss and tinnitus. Take appropriate measures to request copies of such records and associate them with the claims file. Any negative response should be in writing and associated with the claims file. Obtain complete copies of any pertinent VA outpatient treatment records dated from May 2009 to the present, to specifically include the report of a December 9, 2009, VA audiology evaluation, and associate these records with the claims file. 3. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of and/or who were contemporaneously informed of his in-service and/or post-service hearing loss, tinnitus, and psychiatric disorders. He should be provided an appropriate amount of time to submit this lay evidence. 4. After associating any outstanding evidence with the record, schedule the Veteran for an audiological examination to determine if he has a hearing loss disability according to VA standards and the likely etiology of any current bilateral hearing loss and tinnitus. The record must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current bilateral hearing loss and tinnitus had onset during active service, or are otherwise related to active service. In offering this opinion, the examiner must specifically acknowledge and discuss the competent lay evidence regarding in-service noise exposure as well as any continuity of hearing loss and/or tinnitus since service. The examiner must also discuss the threshold shift in the Veteran's hearing acuity from entrance to separation. A fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After associating any outstanding evidence with the record, schedule the Veteran for a psychiatric examination to determine the current nature and likely etiology of any current psychiatric disorder found to be present. The record must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is asked to rule in or exclude a diagnosis of PTSD. If PTSD is diagnosed, the stressors supporting such diagnosis must be identified. The examiner must also offer an opinion as to the etiology of any diagnosed psychiatric disorder, specifically to include whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder is related to active service. A fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Thereafter, readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).