Citation Nr: 1505371 Decision Date: 02/05/15 Archive Date: 02/18/15 DOCKET NO. 11-12 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from January 1967 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, granted service connection for PTSD assigning a 50 percent rating and denied service connection for tinnitus. The issue of entitlement to an initial rating higher than 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's tinnitus is of service origin. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Inasmuch as the determination below constitutes a full grant of the claim being addressed - other than the matter being remanded below - there is no reason to belabor the impact of the VCAA on this matter, since any error in notice content or timing or in the duty to assist is harmless. Accordingly, the Board will address the merits of the claim. II. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for tinnitus related to acoustic trauma in service. At the outset, the Board notes that the Veteran was a Marine Engineer during his service in Vietnam and has testified that he was trained by the Navy to run PBR boats, and was a PBR boat operator, mechanic, and machine gunner on river patrol boats. He indicated that he exposed to heavy fire and a constantly running machine gun with no hearing protection. The Veteran is competent to make such assertions as to his duties in service and there is no reason shown to doubt his credibility in this regard. Also, the Veteran was granted service connection for hearing loss due to exposure to acoustic trauma in service. Thus, exposure to acoustic trauma in service is conceded. Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." 59 Fed. Reg. 17,297 (April 12, 1994). The Veteran's service treatment records are negative for any findings of tinnitus. The Veteran testified at the Board hearing that he experienced tinnitus since his military service. On VA examination in May 2009, however, the Veteran reported that he was unsure on the onset of his tinnitus but that he had had it for many years. The examiner determined that it was less likely than not that the tinnitus was due to military service, but more likely due to presbycusis or some other etiology, as the Veteran could not recall an exact onset date and there was no documentation in the Veteran's file regarding tinnitus in either ear. After a careful review of the evidence of record, the Board finds that the Veteran suffers from a tinnitus disability related to his military service. In making this determination, the Board notes the Veteran's assertions during his Board hearing that he noticed tinnitus since service. Tinnitus is found to be capable of lay observation, and thus his statements constitute competent evidence. The United States Court of Appeals for Veterans Claims has held that, 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 (2007). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Veteran's statements with respect to his tinnitus are considered competent. The Board must now consider the credibility of such evidence. The Veteran has submitted inconsistent statements on medical records and during his hearing testimony regarding the onset of his tinnitus. Notwithstanding the Veteran's inconsistent statements, the Board will accept the Veteran's statements regarding experiencing tinnitus since service at his hearing, as it is consistent with his exposure to acoustic trauma in service. While tinnitus apparently was not a significant problem for the Veteran until after service, nonetheless, the Veteran's lay statements with respect to his complaints of tinnitus are deemed credible and provide probative evidence of chronic symptomatology for many years after service. See Savage v. Gober, 10 Vet. App. 488 (1997). Regarding the medical evidence of record, the opinion from the VA examiner who provided an opinion in May 2009 lacks probative value, as the rationale for this opinion is based, in part, on the fact that the Veteran did not experience until after service. However, the examiner did not account for the fact that the Veteran submitted competent and credible testimony that he experienced tinnitus since service. There are no other medical opinions of record addressing the etiology of the tinnitus. In weighing the conceded exposure to acoustic trauma in service, the medical evidence suggesting a relationship between the Veteran's tinnitus and his service, and the statements from the Veteran regarding chronic symptomatology for many years after service, the Board finds that the evidence is relatively equally balanced in terms of whether he has tinnitus related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran has submitted testimony at the Board hearing that his PTSD symptoms have worsened since he was last evaluated for compensation and pension purposes for this disability in June 2009. Therefore, additional examination is warranted to address the present severity of his PTSD. The Veteran also has asserted that he is rendered unemployable as a result of his PTSD. Thus, the issue of entitlement to a total disability rating based on individual unemployability due to PTSD has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In addition the Veteran has indicated that he receives treatment at the Vet Center and has alluded to additional treatment for his PTSD that does not appear in the record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional treatment he has received for his PTSD, including any treatment referenced by his representative on the January 2015 Informal Hearing Presentation. Make arrangements to obtain any relevant records and notify the Veteran of any unsuccessful attempts. 2. Make arrangements to obtain relevant VA treatment records from the Bay Pines VA treatment facilities dated since October 2008. If efforts to obtain the additional records are unsuccessful, make a formal finding on the unavailability of these additional records and notify the Veteran of this and explain any further actions VA will take regarding his claim. 38 C.F.R. § 3.159(c)(2), (e)(1). 3. Make arrangements to obtain a copy of Vet Center records for the Veteran dated from February 2009 to present. If efforts to obtain these records are unsuccessful notify the Veteran and indicate any further actions VA will take regarding his claim. 4. Following completion of the above, schedule the Veteran for an appropriate examination to determine the severity of his service-connected PTSD. Provide the VA examiner time to review and consider these additional records, in addition to the claims file and a copy of this Remand, in conjunction with the examination. Any indicated tests and studies are to be conducted. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's PTSD on his social and occupational adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. The examiner also should state whether the Veteran's service-connected PTSD and hearing loss/tinnitus, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 6. Then readjudicate the claim in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and provide time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs