Citation Nr: 1339946 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-08 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for tinnitus and granted service connection for PTSD with a 30 percent evaluation effective June 14, 2005. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2010. A transcript is of record. In March 2010, the Board remanded the claims for additional development. The Board also remanded a claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. TDIU was granted in an October 2011 rating decision. As such, it is no longer before the Board for appellate review. The October 2011 rating decision also assigned a 70 percent rating for the service-connected PTSD effective June 14, 2005. Despite the increased rating granted, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a rating decision assigning a particular rating, a subsequent rating decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The issue of entitlement to an initial rating in excess of 70 percent 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 Board resolves reasonable doubt in the Veteran's favor by finding that tinnitus had its onset during active duty service as a result of in-service acoustic trauma. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In this decision, the Board grants entitlement to service connection for tinnitus, which represents a complete grant of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for tinnitus, which he contends is the result of in-service acoustic trauma while working as a crew chief repairing running aircraft on the flight line without hearing protection. The Veteran reports experiencing tinnitus since service. Tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Veteran has one element needed to establish a claim for service connection, namely competent evidence of the current existence of the disability for which service connection is being claimed. Service treatment records are devoid of reference to complaints of, or treatment for, tinnitus. Service personnel records, however, indicate that the Veteran served as a helicopter repairman such that his reports of in-service acoustic trauma are deemed both competent and credible. Therefore, the Veteran has another element needed to establish service connection, namely competent evidence of incurrence or aggravation of a disease or injury in active service. The question to be resolved in this case is whether there is competent evidence of a nexus or connection between the tinnitus and the in-service acoustic trauma. The Veteran has asserted in both the lay and medical evidence of record that he has experienced tinnitus since service. The Board finds this assertion to be competent and credible. The Veteran has undergone two VA audio examinations in connection with this claim and both examiners have provided opinions that the Veteran's tinnitus was less likely as not caused by the acknowledged in-service acoustic trauma. During an August 2006 audio examination, the examiner noted that the Veteran's DD Form 214 showed he served as an aircraft mechanic repairmen for one year and 11 months, that his chief complaint was bilateral tinnitus since service, and that he had post-service occupational noise exposure working on an assembly line for the Whirlpool Corporation without the use of hearing protection. It was the examiner's opinion that tinnitus was less likely than not caused by or a result of the Veteran's noise exposure from military service. The rationale was based in part on the absence of evidence of complaint of tinnitus, or treatment for head injury or acoustic trauma, in the service medical records, the claims folder, or VA records. The examiner also cited the absence of evidence to establish chronicity or continuity of care. The examiner explained that although the Veteran may have been exposed to more intense noise during military service, this was for a period of less than two years, and that his noise exposure in civilian life, while likely not as intense, was for 19 years. The examiner explained that length of exposure time to hazardous noise is a critical factor in determining if a noise-induced hearing loss will occur and to what degree. The August 2006 VA examiner failed to consider the Veteran's competent and credible assertions related to in-service noise exposure and continuous symptoms of tinnitus since service. The examiner also provided an explanation of how length of exposure to hazardous noise factors into determining whether there will be noise-induced hearing loss, without explaining its relevance to tinnitus. Given the foregoing, this opinion is not afforded any probative value. During a November 2008 VA audio examination, the examiner noted the findings of the VA treatment records, in which the Veteran had reported a history of tinnitus since service, and the August 2006 VA examination report. It was the examiner's opinion that bilateral tinnitus is not at least as likely as not caused by or due to military service. The rationale was based in part on the absence of service treatment records with complaint of tinnitus and the fact that the Veteran did not file a claim for tinnitus until 36 years after his discharge from service. The November 2008 VA examiner failed to consider the Veteran's competent and credible assertions related to in-service noise exposure and continuous symptoms of tinnitus since service. This opinion is also not afforded any probative value. The medical opinions obtained in this case are not probative and, as noted above, the Veteran has competently and credibly reported experiencing tinnitus since service. Given the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds there is competent evidence that tinnitus had its onset during active duty service as a result of in-service acoustic trauma. Service connection is therefore warranted on a direct basis. ORDER Service connection for tinnitus is granted. REMAND The claim for PTSD was remanded by the Board in March 2010 with specific instruction that if any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The grant of a 70 percent rating for PTSD in the October 2011 rating decision does not represent a full grant of the benefit sought on appeal. This is so because as noted above, a subsequent rating decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). The October 2011 SSOC issued in this case did not address the claim for an increased initial rating for PTSD. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This deficiency must be rectified on remand, and is especially important given the fact that additional VA treatment records reflecting mental health treatment were associated with the claims folder after the issuance of a February 2008 SSOC. See 38 C.F.R. § 19.31. A June 2009 VA telephone encounter note reflects that the Veteran requested a letter for a Social Security hearing. The medical and legal documents pertaining to the Veteran's application for Social Security Administration (SSA) benefits have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). On remand, efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(2) (2013). As the claim is being remanded for the foregoing reasons, additional VA treatment records should be obtained and a contemporaneous VA examination should be scheduled, as the Veteran was last examined over three years ago in June 2010. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Battle Creek VA Medical Center, dated since June 2010. 2. Request all medical and legal documents pertaining to the Veteran's application(s) for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 3. Schedule the Veteran for an appropriate VA examination to ascertain the current severity of his PTSD. The examiner must review the claims file and all relevant electronic medical records. All appropriate tests and studies must be accomplished and all clinical findings reported in detail. The Board is especially interested in determining whether the Veteran has total social impairment. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim, with consideration of all evidence that has been submitted since the issuance of the February 2008 SSOC. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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 U.S. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs