Citation Nr: 1337835 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-39 827 ) 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 low back condition. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2001 to June 2005, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied claims for service connection for tinnitus and lumbar sprain (claimed as low back condition) and granted service connection for PTSD, assigning a 10 percent disability rating effective June 5, 2005. In an October 2011 decision, the Board increased the disability rating for the Veteran's PTSD to 50 percent, effective June 5, 2005, and remanded that portion of the Veteran's appeal seeking an evaluation in excess of 50 percent for PTSD, together with his tinnitus and back disability claims. In his November 2007 substantive appeal, the Veteran requested a hearing before the Board at the RO. A hearing was scheduled for November 2009 and then at the Veteran's request was rescheduled for January 2010, but the Veteran failed to report. As such, his hearing request is deemed withdrawn. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to service connection for low back pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as nightmares, hypervigilance, exaggerated startle response, chronic sleep impairment, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and irritability; without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In light of the fully favorable determination in this case granting service connection for tinnitus, no further discussion of compliance with VA's duty to notify and assist is necessary with respect to that claim. The Veteran's claim for a higher rating for PTSD arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), service personnel records, and VA treatment records have been obtained and considered. The Veteran was provided with a VA general medical examination in June 2006 and VA mental health examinations in August 2006, April 2009, and January 2012. The 2012 VA examination was provided pursuant to the October 2011 remand. The Board finds that this examination report is adequate for evaluation purposes because the examiner conducted an interview, clinical evaluation, and review of the Veteran's medical history and records. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the RO has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has not reported, nor does the record show, that his service-connected PTSD has worsened in severity since the most recent examination in 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance is required. Thus, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Higher Rating Claim Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). Service connection is in effect for PTSD, rated 50 percent effective June 5, 2005. The Veteran contends that throughout the appeal his PTSD symptoms have been more severe than the assigned rating and that he is entitled to a higher initial rating. The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 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 (2013). Following a review of the record, which includes VA treatment records, the Veteran's lay statements, and VA examination reports dated August 2006, April 2009, and January 2012, the Board finds that preponderance of the evidence shows that his PTSD does not warrant a rating in excess of 50 percent at any point during the appeal. The Board finds that his PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as nightmares, hypervigilance, exaggerated startle response, chronic sleep impairment, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and irritability. The Board finds that the Veteran's symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. There is no evidence or medical opinion that the Veteran has deficiencies in most areas or is totally occupationally and socially impaired. In this regard, there is no evidence in the record of obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; 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; or memory loss for names of close relatives, own occupation, or own name. As to an ability to establish and maintain effective relationships, the evidence shows that the Veteran typically has only one or two close friends, and has effective relationships with his parents and sister. However, he has difficulty trusting other people, avoids crowds, and isolates himself at his apartment after work. By the January 2012 VA examination, he had only one close, long-distance friend outside of his family. His treating social worker at the Vet Center stated in a January 2008 letter that PTSD has had a significant impact on his social functioning and family relationships. All VA examiners noted social detachment and withdrawal. Thus, he has difficulty establishing and maintaining effective relationships, but is not unable to do so. This difficulty is contemplated by his current 50 percent disability rating. As to difficulty in adapting to stressful circumstances (including work or a worklike setting), the Veteran has been employed full-time throughout the majority of the appeal period. During the appeal period he completed a master's degree and at the time of the January 2012 VA examination had held his job for 1.5 years. The VA examiners consistently found that his PTSD symptoms caused no significant occupational impairment. As to impaired impulse control, the Veteran has consistently reported irritability. He was in one reported fight in August 2011, but he did not initiate the physical aspect of the altercation and appeared to respond only when provoked. Excluding this single incident, the evidence shows no periods of unprovoked violence. Thus, while the Veteran struggles with irritability, the Board finds that there is no evidence of impaired impulse control resulting in periods of violence sufficient to warrant a 70 percent evaluation. As to suicidal ideation, the record contains one incident in October 2008 of passive suicidal thoughts without intent or plan. In all treatment records before and after that incident, the Veteran denied suicidal ideation. While suicidal ideation is a serious symptom, the Board does not find that a single incident of passive thoughts without intent or plan is sufficient to warrant a 70 percent evaluation. Finally, none of the VA examiners found that the Veteran had deficiencies in most areas, or was totally occupationally and socially impaired. Rather, the 2006 VA examiner found the Veteran's chronic PTSD produced mild symptoms several days per week. The 2009 VA examiner found mild to moderate symptoms producing an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. The 2012 examiner found occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Board has also considered the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score between 21 and 30 indicates behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation). A GAF score between 31and 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, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF 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). A GAF score between 51and 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 coworkers). GAF scores of 61 to 70 are indicative of 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, with some meaningful interpersonal relationships. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. DSM-IV; Massey v. Brown, 7 Vet. App. 204, 207 (1994). During the appeal period, the Veteran's GAF scores have reflected mild to moderate symptoms, ranging from 53 to 65. He has not been assigned any GAF scores below 53 that would indicate more serious symptoms. Taking the Veteran's history and all of the evidence into account, the Board finds that the GAF scores accurately describe the Veteran's moderate symptomatology, consistent with a 50 percent disability rating. The Board notes that the evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, including nightmares, hypervigilance, and exaggerated startle response. The Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the objective mental status examinations, have most nearly approximated the criteria for a 50 percent rating for the entire appeal period. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert. The Board finds that the Veteran's symptoms have been stable throughout the appeal and therefore staged ratings are not appropriate. Hart. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's PTSD is characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as chronic sleep impairment, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and irritability. These manifestations are contemplated in the applicable rating criteria. The Board has carefully compared the level of severity and symptomatology of the Veteran's PTSD with the criteria found in the rating schedule. The Board has also considered symptoms of nightmares, hypervigilance, and exaggerated startle response that are not found in the rating schedule. In sum, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his descriptions of PTSD symptoms are consistent with the degree of disability addressed by such evaluation. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's PTSD, the question of entitlement to a TDIU is not raised. B. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson, 581 F.3d at 1313; Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza, 7 Vet. at 506. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that his tinnitus began in service as a result of exposure to excessive noise, and has continued to the present. He reports that he was exposed to excessive noise in service. Specifically, as a vehicle systems operator, he was exposed to loud engines and generators for all four years of active service. In combat service in Iraq, he was subject to mortar and heavy weapons fire. The Veteran's personnel records show a military occupational specialty (MOS) of vehicle systems operator and include a post-deployment evaluation stating he was deployed to Iraq. The Veteran is competent to report a history of in-service noise exposure. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. His assertions are credible as they are consistent internally, as well as with his documented service and with his MOS. Caluza. Accordingly, the Board finds that the Veteran was exposed to excessive noise in service. Tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran filed his claim on June 3, 2005, while he was still in active service. His claim form states that his tinnitus was due to combat service in Iraq and that it was related to or had its onset in service. VA treatment records dated in September 2008 and October 2008 show that the Veteran reported being exposed to bomb blasts and explosions in Iraq and having ringing in his ears. At the 2012 VA audiological examination, he reported ringing occurring five to six times per day, lasting about a minute each time. He reported that this symptom had been present since service. The Veteran's STRs are negative for complaints of tinnitus. Nevertheless, he is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington; Layno. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. The Board acknowledges that at two points in the record, the Veteran denied ringing in the ears. This occurred at his post-deployment evaluation in the STRs, and at the June 2006 VA examination. While this is inconsistent with his assertions, the Board notes that the Veteran's tinnitus occurs in intermittent brief episodes and his denial may merely reflect that he was not having such an episode at the time of examination. Resolving reasonable doubt in favor of the Veteran, the Board finds his lay evidence regarding the onset and recurrent of tinnitus to be credible. The only medical opinion regarding the etiology of tinnitus is that of the 2012 VA examiner. She opined that the Veteran's tinnitus was not related to service because there was no evidence, diagnosis, or treatment of tinnitus during military service or up to a year after. However, the Veteran's claim application was received during active service on June 3, 2005, indicating that he was experiencing tinnitus at that time. Therefore, the medical opinion is based on an inaccurate factual premise. The Court has held that a medical opinion based on an inaccurate or incomplete factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the 2012 VA examiner's opinion as to nexus is not probative. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. In this case, under Charles the Veteran is competent to identify the medical condition of tinnitus and his credible lay testimony describes ringing in the ears in service that supports the later diagnosis by the VA examiner. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus. Resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER An initial rating in excess of 50 percent for PTSD is denied. Service connection for tinnitus is granted. REMAND The Veteran seeks service connection for a low back condition. For the following reasons, this claim is remanded. The service records reflect that the Veteran served in Iraq in 2003. Although he has not asserted service connection based on his service in the Persian Gulf, courts have held that because proceedings before VA are nonadversarial VA's obligation to analyze claims goes beyond the arguments explicitly made. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.). In this regard, the Board notes that under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). To date, the Veteran's claims have not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In light of the foregoing, the Board finds that the RO must provide the Veteran with appropriate notice of the evidence needed establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Moreover, in the October 2011 remand, the Board directed the RO to provide the Veteran with a VA joints examination of his low back, stating that "all indicated studies should be performed." The January 2012 VA examiner performed a physical examination and reviewed the claims file, including the most recent imaging studies, dated June 2006. These studies were six years old at the time of the examination. He stated that diagnostic testing was not clinically indicated, but then found that "a more precise diagnosis cannot be rendered as there is no objective data to support a more definitive diagnosis." The Board finds that new imaging studies should have been obtained in order to provide objective data and inform the conclusion regarding the Veteran's current diagnosis. Therefore, the RO should schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset, and etiology of all pathology pertaining to the low back prior to readjudicating his appeal. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran appropriate notice pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for the claims asserted based on Persian Gulf War service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the nature, extent and onset of his low back symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. After physically or electronically associating any pertinent, outstanding records with the claims file, schedule the Veteran for an appropriate VA examination that addresses the nature, extent, onset, and etiology of any low back diagnosis found to be present. The claims folder should be made available to and reviewed by the examiner. The examiner should conduct all indicated testing, and should obtain a current imaging study. a) The examiner should state whether it is at least as likely as not that any low back symptoms can be attributed to a known clinical diagnosis. b) If the examiner attributes any low back symptoms to a known clinical diagnosis, the examiner must state whether it is at least as likely as not that any such diagnosis is related to or had its onset in service. In doing so, the examiner must acknowledge and discuss any lay report of recurrent symptoms since service, as well as the diagnoses of lumbago and low back strain in the service treatment records. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 4 Then readjudicate the Veteran's claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs