Citation Nr: 1759972 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-04 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial disability rating higher than 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2009 and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In August 2017, the Board remanded the case for further development. In August 2017, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. The issue of a higher rating for service connected lumbar spine disability has been raised during the August 2017 Board hearing, 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) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to a higher rating for his service-connected PTSD and service connection for hearing loss and tinnitus. The Veteran was afforded a VA audiological examination in July 2008. The Veteran was shown to have a hearing loss disability and tinnitus during this examination. The examiner opined that the Veteran's hearing loss disability and tinnitus were not related to service, which was based on a determination that the Veteran had normal hearing at separation from service and there was no threshold shift as well as the onset of tinnitus being 10 to 15 years ago. This opinion is inadequate as 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner also failed to adequately discuss the Veteran's conceded inservice noise exposure. The Board also notes that the Veteran provided testimony that he noticed ringing in his ears and trouble hearing during and since service. As such, the Board finds it necessary to remand the claim for another VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). During the October 2017 Board hearing, the Veteran stated that his PTSD symptoms have worsened since the last VA examination in December 2010. A review of the record reveals that the Veteran was actually last afforded a VA examination for his service-connected PTSD in October 2014, which stated that his PTSD symptoms were mild and appear to be slightly less severe than in 2010. Although the Veteran was more recently examined in 2014, he testified that his symptoms were worse now than they were in 2010. As such, the evidence of record suggests his service-connected PTSD has increased in severity since the most recent VA examination in 2014, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). As the development for the issues of service connection for hearing loss disability and tinnitus and entitlement to a higher rating for his service-connected PTSD could have an impact on the outcome of the issue of entitlement to TDIU as service connection may be granted for the issues hearing loss and tinnitus and/or a higher rating may be granted for the issue of PTSD on remand, TDIU is considered inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board finds that the claim for entitlement to TDIU should be remanded as well. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal, to include lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his hearing loss and tinnitus and severity of his service-connected PTSD. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination by an examiner who has not previously examined the Veteran, to determine whether his bilateral hearing loss disability and tinnitus are related to his military service. All pertinent symptomatology and findings must be reported in detail and any indicated diagnostic tests and studies must be accomplished. The claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must elicit from the Veteran and record in the examination report a full history. After a review of the evidence of record, to include the Veteran's statements, the examiner must provide an opinion as to whether any degree of the currently diagnosed bilateral hearing loss disability and tinnitus are related to the Veteran's military service. In offering this opinion, the examiner must specifically acknowledge and discuss the competent lay evidence regarding in-service noise exposure and symptoms. The examiner must specifically discuss the Veteran's assertions as to inservice and post-service occupational noise exposure and symptomatology, including his testimony during the October 2017 hearing before the Board. The examiner is advised that the Veteran's statements and his military occupational specialty are competent evidence of noise exposure and symptomatology during his service and thereafter. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Afford the Veteran a VA examination to assess the current severity of the Veteran's service-connected PTSD. The claim file must be made available to the examiner for review. Based on the examination and review of the record, the examiner is to address all pertinent manifestations of the Veteran's anxiety disorder and the severity of any and all manifestations found. All pertinent symptomatology and findings are to be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).