Citation Nr: 1634575 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 10-12 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for arthritis, to include as due to Agent Orange exposure and as secondary to service-connected PTSD. 6. Entitlement to an initial compensable rating for service-connected left ear hearing loss. 7. Entitlement to an initial rating in excess of 30 percent prior to June 1, 2009, and in excess of 50 percent from June 1, 2009, through March 6, 2012, for service-connected PTSD. 8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1968 to February 1970, to include service in the Republic of Vietnam. His decorations and medals include the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) from September 2008 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix. During the pendency of the appeal, the RO issued an August 2013 rating decision increasing the Veteran's PTSD to 100 percent, effective March 7, 2012. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). As a grant of 100 percent represents a grant of the maximum possible evaluation, there is no further question remaining for consideration by the Board with regard to the Veteran's PTSD from March 7, 2012. However, as the Veteran was not awarded the maximum benefit for the entire appeal period, the issue of entitlement to a higher initial rating for PTSD prior to March 7, 2012, remains on appeal. In March 2012, the Veteran submitted a claim for TDIU, stating that he was unable to secure and follow substantially gainful employment due to his PTSD, arthritis and hypertension. This claim was not adjudicated by the RO. Then, in a June 2016, the Veteran's representative argued that the Veteran is unable to secure and follow substantially gainful employment solely due to his PTSD. As such, it follows that a request for TDIU was reasonably raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (providing that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). Therefore, the issue of entitlement to TDIU is also before the Board. This appeal was processed using the Virtual VA claims processing system and Veterans Benefit Management System (VBMS). Virtual VA contains additional VA treatment records and other documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. The issue of entitlement to service connection for tinnitus is decided herein. The remaining claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's tinnitus began during active military service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claim of entitlement to service connection for tinnitus is being granted in full by this decision. Any error related to VA's duties to notify and assist with regard to this issue is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2015). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran maintains that he had exposure to in-service acoustic trauma (without ear protection) as an infantryman in service. He also reported post-service noise exposure for six years, with ear protection, while working as a machinist. His other employment was in an office setting. See August 2008 VA examination report. The Veteran has stated that he first experienced ringing or buzzing in his ears during service, which has persisted to this day and has recently gotten worse. See June 2009 claim, June 2009 statement accompanying VA Form 9 and January 2010 VA examination report. He has been awarded service connection for left ear hearing loss due to in-service acoustic trauma. See September 2008 rating decision. The Veteran's service personnel records confirm his combat service in an infantry division. Exposure to acoustic trauma is thus determined to be consistent with the places, types, and circumstances of service. See 38 U.S.C.A. § 1154(a). Furthermore, the Veteran is competent to testify as to observable symptoms such as ringing in the ears. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). This symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Given the statements from the Veteran, the Board finds the Veteran's consistent assertions of tinnitus that began during active service to be credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, the Veteran's statements here establish the presence of a continuous disability such as to enable a grant of service connection for tinnitus. A January 2010 VA examiner opined that, based on the Veteran's "significant noise exposure during and after military service it is not possible to determine the etiology of [his] tinnitus without resorting to mere speculation." But the examiner did not address the Veteran's lay statements of in-service onset; accordingly, the opinion is not probative as it is not based upon correct facts. See Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (noting that although the Board may not reject a medical opinion solely because it is based on facts reported by the veteran but may do so where the facts are inaccurate or are unsupported by the other evidence of record). This opinion is thus given no weight. The Board finds that the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND Regarding the remaining issues on appeal, remand is required to obtain Social Security Administration (SSA) records. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). A September 2010 letter from SSA indicates that the Veteran was awarded SSA disability benefits. See April 2012 SSA/SSI Letter. However, there are no SSA records or determinations associated with the claims file and the record does not reflect that the AOJ attempted to obtain such records. In August 2010, SSA replied to VA's July 2010 request for records and stated that no such records were available; however, this pre-dates the Veteran's September 2010 award letter. Therefore, remand is necessary to attempt and obtain the records. Regarding the claim of entitlement to service connection for right ear hearing loss, remand is required to obtain an adequate etiological opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, an August 2010 VA audiological examination was conducted. The examiner opined that the Veteran's right ear hearing loss was not related to active duty because normal hearing of the right ear was noted at the time of separation. No mention was made of the Veteran's complaints (and the other lay statements) of hearing loss since service. A 2016 VA examiner also noted that there was normal right ear hearing at separation. As noted above, service connection does not require an in-service diagnosis of hearing loss and without discussion of other facts, this opinion is inadequate. Regarding the claim of entitlement to service connection for arthritis, the Veteran maintains that he currently has arthritis related to service, to include his exposure to herbicides therein, or, alternatively, aggravated by his service-connected PTSD. See March 2010 VA Form 9; June 2016 Informal Hearing Presentation. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The AOJ did not provide the Veteran with an examination regarding the Agent Orange aspect of his claim. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Board notes that a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). A medical opinion is required in this matter. Finally, remand is required regarding the claim for TDIU for development and adjudication. As noted in the Introduction, the Veteran contends he is unable to work in any capacity due to his service-connected PTSD. Therefore, the AOJ should develop and adjudicate the Veteran's claim for entitlement to a TDIU. See Rice, 22 Vet. App. 447. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, since November 2015. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Obtain a copy of any decision to grant SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of right ear hearing loss from a VA examiner. The claims file should be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss was caused or aggravated by military service, to include conceded noise exposure during combat service in Vietnam. The examiner is reminded that VA law and regulation does not preclude service connection for post-service hearing loss where hearing was within normal limits at the time of separation from service. It is requested that the examiner record a detailed history of in-service and post-service noise exposure. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 5. After any additional records are associated with the claims file, provide the Veteran a VA examination by an examiner with the sufficient expertise to ascertain the nature and etiology of any arthritis present during the period of this appeal. The claims file must be made available to and reviewed by the examiner and any indicated studies should be performed. A supporting explanation for all requested opinions shall be provided. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any arthritis is related to the Veteran's period of active military service, to include his presumed herbicide exposure therein. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD caused or aggravated his arthritis. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. Develop and adjudicate the Veteran's claim of entitlement to a TDIU. In so doing, the AOJ may decide to pursue further development of the Veteran's employment history, obtain a social and occupational survey, and/or refer the case to the Director of Compensation and Pension Service as is deemed necessary. 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 2014). ______________________________________________ K. MILLLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs