Citation Nr: 1640601 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 12-29 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial disability rating in excess of 10 percent for coronary artery disease. 3. Entitlement to an initial disability rating in excess of 10 percent for paroxysmal atrial tachycardia. 4. Entitlement to a total disability rating due to individual unemployability REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from November 2010 and January 2011 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Jackson, Mississippi. The Board notes that the Veteran, through his representative, submitted an April 2014 statement that he is unable to work due to his service-connected cardiac disabilities. Accordingly, the Board finds that entitlement to a total disability rating due to individual unemployability is before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran initially requested a personal hearing with a Veterans Law Judge, he failed to appear for the scheduled hearing in April 2016 and no request to reschedule the hearing has been received by VA. His hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e) (2015). The issues of entitlement to increased ratings and a TDIU 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 is at least in equipoise that the Veteran's currently diagnosed tinnitus resulted from his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus is related to his service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not necessary at this time. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Laws and Regulations Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Analysis The Veteran was afforded VA examinations in May 2010 and June 2012. Upon review of the record and a clinical examination, the May 2010 and June 2012 examiners offered opinions that they could not determine the etiology of the Veteran's claimed tinnitus disability without resort to mere speculation. While both examiner's noted that tinnitus is a subjective disability that cannot be objectively verified, neither opined that the Veteran's claimed tinnitus was less likely than not due to service In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of tinnitus and he is considered credible as to these assertions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided competent and credible statements regarding exposure to hazardous noise levels in service and the onset of tinnitus; symptoms he can observe and attest to, during and continuing since service. The Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current tinnitus is related to his in-service noise exposure. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. REMAND The Veteran contends that his service connected tachycardia and coronary artery disease disabilities have increased in severity since he was last examined by VA in August 2013. The Board finds that examinations to determine the current severity of his service-connected disabilities are warranted. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). Additionally, the Veteran's VA treatment records indicate that he was hospitalized for cardiac disabilities in April 2016 and again in June 2016. Those VA treatment records are constructively of record, and must be secured to allow for a fully informed appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, the Veteran's Social Security Administration records were obtained during the pendency of the appeal. The Board notes that the Veteran was found disabled under SSA regulations as of March 2007 due to cardiac and vascular disabilities. Based on the foregoing, the Board finds that a social and industrial survey would be helpful to ascertain the current impact of the Veteran's service-connected disabilities on his ability to work. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his coronary artery disease and paroxysmal atrial tachycardia disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain all outstanding VA treatment and evaluation records from the Jackson VA Medical Center. 2. Schedule the Veteran for an examination to determine the current severity of the coronary artery disease disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. 3. Schedule the Veteran for an examination to determine the current severity of the paroxysmal atrial tachycardia disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. 4. The AOJ should schedule the Veteran for a VA social and industrial survey (field examination) by a VA social worker or other appropriate personnel. The ultimate purpose of the VA social and industrial survey is to assist the Board in ascertaining the impact of the Veteran's service-connected disabilities on his ability to work. The social worker is requested to: (a) Describe the Veteran's employment history. (b) Elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. (c) Provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected disabilities on his daily activities, to include his employability, taking into consideration his level of education, any special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. A written copy of the report should be associated with the claims folder. 5. Thereafter, re-adjudicate the claims, including the issue of entitlement to TDIU, and if the benefits sought on appeal remain denied, issue an appropriate Supplemental Statement of the Case. The Veteran 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs