Citation Nr: 1509047 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-00 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder. 2. Entitlement to service connection for a skin disorder, to include urticaria and angioneurotic edema. 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to an effective date earlier than February 5, 2008, for the grant of service connection for posttraumatic stress disorder (PTSD). 5. What evaluation is warranted for PTSD from February 13, 2004 to February 4, 2008? 6. What evaluation is warranted for PTSD from February 5, 2008? 7. What evaluation is warranted for tinnitus from October 20, 2009? ATTORNEY FOR THE BOARD S. Syverson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Louis, Missouri, and Detroit, Michigan. The case was certified to the Board by the RO in Cheyenne, Wyoming. The issues of entitlement to service connection for a skin disorder, urticaria, and angioneurotic edema were initially adjudicated as separate issues. The Board has recharacterized the issue as reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran requested a hearing in conjunction with his appeal, and a hearing was scheduled in September 2013. The Veteran failed to appear for that hearing, and his hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d) (2014). Review of the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) paperless files shows additional relevant documents, which have been taken into consideration. A claim to reopen the issue of entitlement to service connection for chronic obstructive pulmonary disease was raised in a September 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issue of entitlement to service connection for a skin disorder, to include urticaria and angioneurotic edema; and the question what evaluation is warranted for PTSD prior to February 5, 2008, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an August 2004 rating decision, VA denied entitlement to service connection for a skin condition. The Veteran did not perfect a timely appeal or submit new and material evidence within the one year appeal period. 2. Evidence received since the August 2004 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a skin disorder. 3. A bilateral hearing loss disability, to include sensorineural hearing loss, was not manifested during service, it was not compensably disabling within a year of the appellant's separation from active duty, and a current bilateral hearing loss disability is unrelated to in-service noise exposure. 4. The Veteran filed an original claim of entitlement to service connection for a nervous disorder on February 13, 2004; that claim was denied in an August 2004 rating decision. 5. Service connection for PTSD was granted in an October 2008 rating decision based in part on service department records which were in the government's custody but not of record at the time of the August 2004 rating decision and which confirmed the Veteran's in-service combat stressor. 6. The evidence of record demonstrates that the Veteran is entitled to service connection for PTSD as of February 13, 2004. 7. The evidence is at least evenly balanced as to whether symptoms of PTSD have most nearly approximated total occupational and social impairment since February 5, 2008. 8. The Veteran is in receipt of a 10 percent disability rating for his tinnitus, which is the maximum scheduler rating under the applicable rating criteria, and no unusual disability due to tinnitus is demonstrated. CONCLUSIONS OF LAW 1. The August 2004 rating decision which denied entitlement to service connection for a skin condition is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2014). 2. Evidence received since the August 2004 decision is new and material and the claim of entitlement to service connection for a skin disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. A bilateral hearing loss disability was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014). 4. The criteria for an effective date of February 13, 2004, for the grant of service connection for posttraumatic stress disorder have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(c), 3.304(f), 3.400 (2014). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 100 percent for PTSD have been met since February 5, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014). 6. There is no basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act With respect to whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder, in light of the favorable determination, discussion of VA's compliance with its duties to notify and assist is not necessary. With respect to the remaining issues decided herein, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2008 and November 2009 of the information and evidence needed to substantiate and complete a claim, including notice of the evidence to be provided by the claimant, the evidence VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims decided herein, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). There is no evidence that additional records relevant to the issues decided herein have yet to be requested or that additional examinations with respect to these issues are in order. In sum, there is no evidence of any VA error in notifying or assisting the Veteran as to the issues decided herein that reasonably affects the fairness of this adjudication. II. Analysis Skin Disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Additionally, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence were submitted and not acted upon, a claim could still be pending until a decision was made on that evidence. See 38 C.F.R. § 3.160(c) (2014) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New evidence is defined as existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. Id. Evidence raises a reasonable possibility of substantiating the claim if, when considered with previous evidence of record, it is sufficient to trigger further assistance by VA under the VCAA, such as providing a medical examination; the evidence need not, by itself, change the outcome of the previous decision. Shade v. Shinseki, 24 Vet. App. 110, 117-19 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order to determine whether new and material evidence has been received, the Board must analyze the law applicable to the underlying service connection claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In August 2004, VA denied entitlement to service connection for a skin disorder. Although the Veteran filed a timely notice of disagreement, he did not perfect an appeal in a timely manner, and he did not submit new and material evidence within the one year appeal period. Therefore, the August 2004 denial is final. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.1103. In the August 2004 rating decision, entitlement to service connection for a skin condition was denied because there was no nexus between the Veteran's current condition and service. Specifically, VA explained that the Veteran suffered from allergic purpura in service, and post-service treatment records show treatment for tinea versicolor, an unrelated disorder. Evidence received since the August 2004 decision includes a February 2008 statement by the Veteran's sister-in-law describing that the appellant began getting rashes, which never went away completely, shortly after returning from Vietnam. Also of record is a September 2013 statement by the claimant's daughter describing that as a young child she would scratch the rash on his back for him. Given that lay persons are competent to observe that a person has a rash, and that they helped the Veteran scratch the rash, the Board finds that this evidence arguably suggests that the appellant's present skin disorder may be associated with service. Hence, as this new evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim, the claim is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-19. Hearing Loss Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA policy is that a "[s]ensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a. The Board will therefore consider the Veteran's bilateral sensorineural hearing loss to be an organic disease of the nervous system and therefore a chronic disease subject to the chronicity and continuity provisions of 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), including for the reasons noted above sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a) , 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Findings at a February 2010 VA-authorized audiological examination reveal that the appellant has a hearing loss as that term is defined by 38 C.F.R. § 3.385. That examination specifically revealed that the Veteran has a sensorineural hearing loss. The Veteran has reported being exposed to noise in service from various vehicles, such as bulldozers, and weapons fire. The Veteran served in Vietnam as a construction machine operator and submitted a copy of his government motor vehicle operator's identification card showing the vehicles he was qualified to operate. As the Veteran is competent to testify as to his observations, and as his statements regarding in-service noise exposure are consistent with the circumstances of his service, the Board finds that the appellant was exposed to loud noise in service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As the Veteran has been diagnosed with a chronic disease, the Board must determine whether he had such disease in service, whether a sensorineural hearing loss was compensably disabling within one year of separation from active duty, or if any current hearing loss disability is otherwise related to service. The service treatment records include a June 1965 pre-induction examination report, with a September 1965 addendum, and an August 1967 separation examination report with audiometric test results. Regarding the interpretation of audiometric data, the Board notes that prior to October 31, 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, where applicable, the ASA standards have been converted to ISO-ANSI standards. In this regard, the ASA pure tone thresholds as noted in the Veteran's service treatment records are represented by the digit not contained in parentheses, while the converted ISO-ANSI pure tone threshold are contained in the parentheses. Audiometric testing at June and September 1965 examinations revealed that the appellant's hearing was within normal limits for VA purposes. 38 C.F.R. § 3.385. Likewise, when the appellant was examined at his August 1967 separation examination his hearing was within normal limits. Id. The August 1967 examination specifically revealed that the Veteran's ears and eardrums were normal. In an accompanying report of medical history, the Veteran specifically stated that he did not have and had never had ear trouble, running ears, or hearing loss. Other evidence of record includes an October 2007 VA audiological evaluation report showing that the Veteran reported longstanding, slowly progressive hearing loss. He reported a history of noise exposure operating heavy equipment in the military and as a cement finisher. Examination revealed bilateral sensorineural hearing loss. No opinion was offered as to the cause of the Veteran's hearing loss. In an October 2009 statement, the Veteran described his in-service noise exposure and stated that his trouble hearing started in Vietnam. He also asserted that his service treatment records show that his hearing was not the same when he got out of service as it was when he went in. In October 2009 the Veteran submitted an October 2006 article titled "Roadside bombs taking toll on troops' hearing," which addresses hearing loss in soldiers serving in Iraq. The article lists several "facts on hearing loss," including that if a soldier has been exposed to an explosion, the hearing loss may be temporary, that the symptoms can last for several days, and that too many of these incidents will result in permanent hearing loss years later. The article includes comments by a physician's assistant who served a year at a clinic north of Baghdad who observed that in his experience, as many as 30 percent of people who are exposed to bombs suffer some form of hearing loss, temporary in most cases. A military audiologist serving in Iraq observed: "Loud noise equals hearing loss. Period. No doubt about it." He also provided his opinion that hearing loss can happen gradually and "[w]hat you're exposed to today might not show up for 10 years." The Veteran also submitted two chapters from a publication by the National Academy of Sciences. One chapter provides background material on noise-induced hearing loss and includes a finding that "[t]he evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure . . . . Most recovery to stable hearing thresholds occurs within 30 days." Another finding notes that although definitive studies addressing whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of noise exposure, have not been performed, "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The second chapter submitted by the Veteran addresses hearing conservation programs in the military and includes a finding that such programs are not adequate to protect the hearing of military service members. A February 2010 VA-authorized examiner reported reviewing the Veteran's service and VA treatment records. She opined that the Veteran's tinnitus was at least as likely as not due to his military service, but that his bilateral hearing loss was less likely than not due to military service. She explained that "[b]ased on no threshold shifts noted at pre-induction/separation, but with onset/severity of tinnitus and military noise exposure, acoustic trauma must be considered as occurring causing tinnitus but not necessarily a hearing loss at frequencies evaluated at." The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The audiometric test results from service reflect that the Veteran had normal hearing and did not have a hearing loss disability of either ear in service. He therefore did not have a chronic disease in service. To the extent that the Veteran has asserted that he had a hearing loss disability in service or within one year of separation from service, while the Veteran is competent to report that he subjectively experienced diminished hearing, he is not competent to determine that any hearing impairment rose to the level of a hearing loss disability, as such a determination requires audiometric testing. See 38 C.F.R. § 3.385; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting the circumstances under which lay evidence can be competent to establish a diagnosis of a condition). Consideration of continuity of symptomatology is required only where a condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, a hearing loss was not noted in service. Moreover, to the extent that the Veteran has asserted that hearing loss began in service and has progressed since, the claimant's contemporaneous indication that he did not have hearing loss in the August 1967 report of medical history is of greater probative weight than later statements made during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). The evidence thus reflects a lack of continuity of hearing loss symptomatology. The evidence is devoid of any suggestion that the appellant had a compensably disabling sensorineural hearing loss within one year of his September 1967 separation from active duty. The only remaining question is whether the Veteran's current bilateral hearing loss disability is otherwise related to his in-service noise exposure. There are two opinions on this question, that of the audiologist who conducted the February 2010 VA-authorized examination and that of the Veteran and his daughter. After reviewing the claims file, examining the Veteran, and considering his history of noise exposure, the audiologist concluded that current hearing loss was less likely to be related to military noise exposure. The audiologist recognized that the Veteran suffered acoustic trauma in the military, which caused his tinnitus, but noted that there was no change in threshold sensitivity from entry to exit, indicating that the acoustic trauma did not cause a hearing loss at the frequencies of interest. As the audiologist explained the reasons for her conclusions, her opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The audiologist's opinion is supported by the National Academy of Sciences materials submitted by the Veteran, which indicate that the effects of noise exposure are measurable immediately and that delayed effects are unlikely. The audiologist noted a lack of threshold shifts in hearing between entrance and exit. The Board notes that a comparison of the June 1965 and August 1967 audiometric test results does show different decibel readings, however, all readings are considered to be within normal limits in light of the provisions of 38 C.F.R. § 3.385. Hence, the audiologist did not err in finding a lack of threshold shifts in hearing; rather, the Board infers that her statement was meant as an opinion that any shift in thresholds was not significant. The only other opinions are those offered by the Veteran and his daughter, both of whom attributed his current bilateral hearing loss disability to his in-service noise exposure. The Veteran described his in-service noise exposure and stated that the ringing in his ears and his trouble hearing started while he was in Vietnam. The Veteran's daughter questioned the audiologist's evaluation of the claimant's post-service noise exposure, explaining that working as a cement finisher is not a job that exposes a person to loud noise and that hunting was considered a rite of passage where they lived, but that the appellant did not enjoy hunting, always returned empty handed, and sometimes said he was going hunting when he was, in fact, engaged in other activities, such as going to the casino. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the testimony of the Veteran and his daughter as to the relationship between his sensorineural hearing loss disability and in-service noise exposure is testimony addressing an internal medical process, here a sensorineural hearing loss, taking place over time, which extends beyond the type of immediately observable cause-and-effect relationship about which a layperson is competent to testify. Jandreau, 492 F.3d at 1377, n. 4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Board therefore finds that the lay testimony is not competent in this regard. To the extent that this testimony is competent, the Board finds that the specific, reasoned opinion of the VA audiologist in February 2010 is of greater probative weight than the more general lay assertions of the Veteran and his daughter. Regarding the Veteran's daughter's assertion that he did not experience significant post-service noise exposure, the audiologist did not base her opinion on either a lack of acoustic trauma in service or a characterization of the appellant's post-service noise exposure that was at odds with his self-reported history. Rather she noted the claimant's self-reported noise exposure history, which is consistent with his other statements of record, and found based on the lack of a significant threshold shift in service that hearing loss was less likely than not due to military service. Regarding the article and National Academy of Sciences materials submitted by the appellant, the article indicates that exposure to multiple explosions will result in permanent hearing loss years later and that the results of noise exposure may manifest years later, it supports the Veteran's theory that his in-service noise exposure led to a gradually worsening hearing loss. The Board notes, however, that those observations are not in agreement with the more detailed discussion in the National Academy of Sciences materials that the most pronounced effects of a given noise exposure are measurable immediately following the exposure and that it is unlikely that delayed effects of noise exposure occur, given available anatomical and physiological data about the recovery process from noise exposure. In any event, the Board finds that the opinion of the February 2010 audiologist, which was based on review of the Veteran's service treatment records and self-reported noise exposure history, to be more probative as to whether the appellant's hearing loss is due to his military service than the generalized statements regarding noise and hearing loss in the abstract. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). PTSD The Veteran contends that an earlier effective date for the grant of service connection for PTSD is warranted. Generally, when granting service connection for a disability in response to an application to reopen a claim that had previously been denied, VA cannot assign an effective date earlier than the date of receipt of the petition to reopen. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), (r). There are, however, exceptions to this general rule. One such exception provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim without regard to the rules relating to reopening. 38 C.F.R. § 3.156(c)(1). In such cases, the effective date will be the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). The Board finds that reconsideration in accordance with 38 C.F.R. § 3.156(c) is warranted. VA denied service connection for anxiety disorder, claimed as a nervous condition, in August 2004. Although the Veteran filed a timely notice of disagreement, he did not perfect his appeal after issuance of the statement of the case. Separately, in an August 2005 decision, VA denied entitlement to PTSD. The Veteran again filed a notice of disagreement, but did not perfect his appeal after issuance of the statement of the case. Notably, in connection with the Veteran's original claim, he submitted a statement in July 2004 that he wanted to change his claim from anxiety disorder to PTSD. In light of the evidence developed in processing the Veteran's original claim, including the Veteran's statements, the Board finds that the original February 2004 claim is best understood as a claim for an acquired psychiatric disorder, to include PTSD. Clemons, 23 Vet. App. at 5. When VA first issued a rating decision specifically addressing PTSD in August 2005, entitlement to service connection for PTSD was denied because the evidence was found to be insufficient to verify the claimed stressors. The appellant's claim was subsequently granted based on a report from the United States Army Joint Services Records Research Center (JSRRC) verifying the validity of one of the Veteran's claimed combat stressors based on research of operational reports from the Veteran's unit. Notably, the statement that prompted VA to send the request to JSRRC was a February 2008 statement by the Veteran that he had been working near an ammo dump when the Viet Cong shelled the dump and all of the ammo started blowing up and one soldier was injured. The Veteran had submitted a very similar statement in April 2005 describing that the Viet Cong set an ammo dump on fire, shells started flying all over, and soldiers were hurt. There is no indication that the operational reports relied on by the JSRRC were not in existence at the time of the Veteran's original claim, and the Board finds that the Veteran provided sufficient information in 2005 in connection with his February 2004 claim for VA to identify and obtain the records from JSRRC in connection with his original claim. Therefore, the exception in 38 C.F.R. § 3.156(c)(2) is not for application, and the Board will reconsider the Veteran's original claim, which as noted above is best interpreted as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 C.F.R. § 3.156(c). Having found that the Veteran's original claim should be reconsidered, the remaining question relevant to determining the appropriate effective date is whether entitlement to service connection for PTSD existed on the date VA received the previously decided claim (February 13, 2004). 38 C.F.R. § 3.156(c)(3). Establishing service connection for PTSD requires: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed stressor. 38 C.F.R. § 3.304(f). The evidence required to establish the occurrence of the in-service stressor element depends on the nature of the alleged stressor. When the claimed stressor is related to combat and the evidence establishes that the Veteran engaged in combat, the Veteran's lay testimony alone may establish the occurrence of the stressor. 38 C.F.R. § 3.304(f)(2). Although 38 C.F.R. § 3.304(f) has been amended since the Veteran's original February 2004 claim, the relevant provisions have not substantively changed. The Board finds that the evidence establishes that the Veteran is entitled to service connection as of February 13, 2004, the date of his original claim for service connection. Regarding a diagnosis of PTSD, the Board notes the July 2005 VA examination report showing a diagnosis of chronic PTSD that had been present in varying levels since the Veteran's discharge. Additionally, a March 2006 VA mental health assessment is noted to have diagnosed PTSD with a duration of 30 plus years with over 28 years substantiated by the reports of others. These documents are more probative than earlier records suggesting other diagnoses, such as an April 2002 VA treatment record showing a diagnosis of anxiety disorder. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (explaining that an earlier effective date may be warranted based on a retrospective diagnosis and the date the evidence is submitted or received is irrelevant). Regarding a stressor, the Veteran's claimed combat stressor related to the explosion to the ammunition depot was verified by JSRRC. Finally, a link between the Veteran's PTSD symptomatology and claimed in-service stressor has been established by the medical evidence of record. For example, the March 2006 mental health assessment includes a diagnosis of PTSD based, in part, on the Veteran's description of the incident related to the ammunition depot, and the June 2008 VA examination report shows that the appellant's PTSD symptoms are at least as likely as not associated with his service in Vietnam. For the foregoing reasons, the Board finds that entitlement to service connection for posttraumatic stress disorder is warranted effective from February 13, 2004. There is no earlier claim or other legal basis shown for assignment of an earlier effective date. Rating to be assigned for posttraumatic stress disorder The Veteran asserts that he is entitled to an initial rating higher than 70 percent for PTSD. Disability evaluations are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 70 percent rating is warranted where there is 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); and inability to establish and maintain effective relationships. The maximum scheduler 100 percent rating for a psychiatric disability 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Evidence of record includes a June 2008 letter from the Veteran's social worker, D.G., describing symptoms of flashbacks that are strong enough to interfere with reality testing and present with a sustained response. These reportedly prevent the appellant from resuming activity even after they subside; cause a severe constraint of his ability to socialize, maintain social or family contact, or engage in life activities on a consistent basis; and they cause cognitive impairment, including impaired judgment and thinking. D.G. opined that the impairment caused by the Veteran's PTSD made substantial work unlikely. In a May 2009 psychosocial assessment and employability evaluation, Dr. E.M.T. opined that based on the Veteran's education, training, work history, and current level of PTSD symptoms, the appellant was not a viable rehabilitation candidate and was not capable of sustaining substantial gainful activity. Symptoms identified by Dr. E.M.T. included short- and long-term memory loss, frequent bouts of irritability and outbursts of anger, generalized anxiety with daily panic attacks, and flashbacks and intrusive thoughts. In a September 2010 letter, D.G. describes symptoms including increased occurrences of striking out when surprised, which resulted in the Veteran hitting an elderly gentleman when he was startled by the man's voice. D.G. observed that the Veteran's PTSD results in total work impairment and that his symptoms result in a mix of behavior and emotions that fell between the 70 and 100 percent impairment levels on the general rating formula for mental disorders. As noted above, the Veteran has at times been diagnosed with anxiety disorder. Even assuming that these are two distinct disorders because there is no medical evidence of record separating the effects of PTSD from an anxiety disorder the Board must consider all of the Veteran's symptoms and resulting occupational and social impairment to be attributable to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of the symptoms and their impairment of the Veteran's occupational and social abilities discussed above, the Board finds that the evidence is approximately evenly balanced as to whether symptoms of his posttraumatic stress disorder more nearly approximated total occupational and social impairment from February 5, 2008. As reasonable doubt must be resolved in favor of the Veteran, entitlement to an initial 100 percent rating for PTSD from February 5, 2008, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("[T]he nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). Tinnitus The Veteran seeks entitlement to an initial rating higher than 10 percent for recurrent tinnitus. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides for a single, scheduler 10 percent rating. Note 2 to Diagnostic Code 6260 specifically provides that only a single evaluation is to be assigned, whether the sound is perceived as being in one ear, both ears, or in the head. See also Smith v. Nicholson, 451 F.3d 1344 (Fed.Cir. June 19, 2006). As the current version of Diagnostic Code 6260 specifically prohibits a scheduler evaluation in excess of a single 10 percent rating for tinnitus, however perceived, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted as a matter of law in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The Board further notes that there is no evidence showing that tinnitus has had either a marked interference with employment, or that it has been responsible for frequent hospitalization of the Veteran. As such an extrascheduler evaluation is not in order. 38 C.F.R. § 3.321. ORDER The claim of entitlement to service connection for a skin disorder is reopened. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for posttraumatic stress disorder effective from February 13, 2004, is granted. Entitlement to an initial 100 percent rating for posttraumatic stress disorder from February 5, 2008, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 10 percent for tinnitus from October 20, 2009, is denied. REMAND Regarding entitlement to service connection for a skin disorder, to include urticaria and angioneurotic edema, remand is necessary to obtain all relevant records and to provide the appellant with a VA examination. The service treatment records include a clinical record cover sheet showing that the Veteran received in-patient treatment for one week in May 1966 with diagnoses of angioneurotic edema and urticaria. Appropriate efforts must be made to obtain clinical in-patient records of such treatment. Further, an examination is warranted as there is competent evidence of current symptoms of a skin disability, evidence showing treatment for skin disorders in service, evidence of inservice exposure to herbicides, and lay evidence regarding recurrent symptoms since service. McLendon, 20 Vet. App. at 86. The Board has granted entitlement to service connection for PTSD effective from February 13, 2004. The AOJ, however, has not had the opportunity to assign an initial disability rating for the Veteran's PTSD from February 13, 2004, to February 4, 2008. In order to avoid any possibility of prejudice to the appellant the Board must remand the issue to the AOJ to assign a disability rating for the appellant's PTSD during that term. In assigning this rating, given that the Veteran has submitted evidence of unemployability, the AOJ must address whether a total disability rating based on individual unemployability is warranted during any portion of this time period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a total disability rating based on individual unemployability is not a separate claim for benefits, but an attempt to obtain an appropriate disability rating). Accordingly, the case is REMANDED for the following action: 1. Make appropriate attempts to obtain clinical in-patient records of the Veteran's May 1966 treatment for angioneurotic edema and urticaria at the 93rd Evacuation Hospital, APO US Forces 96227. Associate any additional records with the claims, Virtual VA, or VBMS file. If the AOJ cannot locate the records, it must specifically document the attempts that were made to locate such records, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA skin disorder examination. Provide the examiner access to the claims file, any relevant Virtual VA and VBMS records, and a copy of this remand. The examiner must review the claims file and any relevant Virtual VA and VBMS records and indicate in the examination report that such review occurred. Any indicated tests or studies should be performed. The examiner is to: (a) Examine the Veteran and diagnose any skin disorders to include addressing whether a diagnosis of chronic urticaria, chronic angioneurotic edema, chloracne or acneform disease consistent with chloracne, or porphyria cutanea tarda, is warranted. (b) For each and every diagnosed skin disorder, opine whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the disorder had its onset during or was caused by the Veteran's military service, to include in-service treatment for angioneurotic edema and urticaria, herbicide exposure, or claimed laterite poisoning. If chloracne or an acneform disease consistent with chloracne or porphyria cutanea tarda is diagnosed, is it at least as likely as not that such disorder manifested by September 1968? If so, to what degree? (c) Provide a fully reasoned rationale for any and all opinions offered, including a discussion of the facts of this case and any medical studies or literature relied upon. In addition to any other evidence the examiner finds pertinent, the examiner must address the following materials submitted by the Veteran: a July 2004 website printout regarding chloracne; a website printout regarding chronic strongyloidiasis in Vietnam veterans submitted in October 2009; an article regarding a clinical study of dermatoses of Vietnam veterans exposed to Agent Orange submitted in October 2009; a website printout regarding angioneurotic edema submitted in November 2011; and a website printout regarding laterite submitted in November 2011. The examiner must discuss the Veteran's self-reported history. The examiner is advised that while the Veteran is not competent to state that he has suffered from a specific skin disorder since service, he is competent to state that he has had certain symptoms, such as a rash, since service. The examiner is further advised, however, that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why that is the case. 3. Assign a disability rating for the Veteran's PTSD disability from February 13, 2004, to February 4, 2008, to include consideration of whether a total disability rating based on individual unemployability is warranted for any portion of that term. The AOJ must also readjudicate the issue of entitlement to service connection for a skin disorder. If any benefit sought is not granted to the Veteran's satisfaction, he must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs