Citation Nr: 1515126 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 13-17 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an effective date earlier than July 19, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial rating in excess of 70 percent for PTSD. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968, which includes service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, in which the RO denied the Veteran's claim for service connection for tinnitus, granted service connection for PTSD, and addressed other issues. In October 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issues of the Veteran's entitlement to an earlier effective date for the grant of service connection for PTSD and an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence shows that the Veteran's tinnitus is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 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 v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 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) (West 2014); 38 C.F.R. § 3.303(a) (2014). Additionally, in evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, during his October 2014 Board hearing, the Veteran reported that his tinnitus had onset during service after he was exposed to noise from an ammunition dump explosion and an incident where his convoy struck a pressure line, and reported that he has experienced ringing in his ears since that time. First, the Board finds that the Veteran is competent to report as to the onset of his tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In addition, although the Veteran's STRs are negative for any reports of tinnitus or hearing problems, the Board finds it highly probative that his military personnel records indicate that he worked with heavy equipment during service. See Jandreau, 492 F.3d at 1376 ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). In a statement dated January 2011, non-VA physician Dr. A.J.F. noted the Veteran's history of in-service exposure to artillery, small arms, mortar, and heavy machine gun fire, which the Board finds is consistent with the nature of the Veteran's service. Dr. A.J.F. concluded that the Veteran has tinnitus and vertigo that are the direct result of his period of active service. The report of a March 2011 VA audiological examination also documents the Veteran's report of in-service noise exposure. Specifically, the examiner documented the following sources of the Veteran's exposure to noise during service: ammunition dump explosion, combat explosions, M-16 fire, mortar fire, and a mine explosion. The examiner concluded that there was no evidence in the Veteran's STRs that the Veteran's tinnitus was caused by, or incurred during, his active service. The examiner supported her conclusion by noting that there was no significant change in the Veteran's hearing acuity from his entrance into service and his separation from service. The Board finds that in providing this opinion, the examiner failed to address whether it is at least as likely as not that the Veteran's reported in-service exposure to noise caused tinnitus, notwithstanding any minor shifts in hearing acuity during service. The Board finds therefore that the examiner's opinion as to the etiology of the Veteran's tinnitus is inadequate, as she failed to address salient facts. In light of the Veteran's competent and credible reports concerning the onset of his tinnitus and Dr. A.J.F.'s opinion, the Board finds that the evidence is in favor of a grant of service connection for tinnitus. ORDER Service connection for tinnitus is granted. REMAND Review of the record shows that the Veteran filed a timely notice of disagreement with the RO's assigned effective date for the grant of service connection for PTSD, but a statement of the case has not been issued with regard to this issue. Where, as here, there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Thus, remand for issuance of a statement of the case on this issue is needed. In addition, because the matter of the Veteran's entitlement to an increased initial rating for PTSD is inextricably intertwined with his claim for an earlier effective date for the grant of service connection, the Board finds that the issue of his entitlement to an increased rating must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Additionally, the Board acknowledges that the Veteran asserted during his October 2014 Board hearing that his PTSD has worsened. Generally, VA is required to assist the Veteran in obtaining evidence necessary to support his claim and afford an examination to assess the current nature, extent, and severity of a service-connected disability when there is evidence that the Veteran's level of disability worsened. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, an examination must be provided on remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a statement of the case regarding his claim for an effective date earlier than July 10, 2010 for the grant of service connection for PTSD. Advise the Veteran of the time period in which to perfect his appeal. In addition, notify the Veteran that he may submit statements from himself and others who have first-hand knowledge as to the nature and severity of his PTSD. 2. Associate with the claims folder, physically or electronically, all records of the Veteran's recent and pertinent VA treatment. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After the above development has been completed, schedule the Veteran for an examination to determine the nature, extent, and severity of his PTSD. The claims file should be made available to and reviewed by the examiner, and all indicated tests and studies should be conducted. The examiner should set forth a complete rationale for all findings and conclusions. 4. After ensuring that the requested development is completed and the examination is adequate, readjudicate the issues on appeal. If any benefits sought are not granted, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs