Citation Nr: 1800556 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-03 680A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease. 6. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to February 1972 with combat service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2017. He also testified before a hearing officer at the RO in March 2015. Transcripts of both hearings are associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of an increased initial rating for PTSD, service connection for erectile dysfunction and hypertension, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is etiologically related to in-service acoustic trauma consistent with his combat service in Vietnam. 2. The Veteran's tinnitus is etiologically related to in-service acoustic trauma consistent with his combat service in Vietnam. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for a bilateral hearing loss disability and tinnitus as they are related to combat noise exposure during active duty. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). After review of the record, the Board finds that service connection is warranted for the claimed disabilities. The record establishes a current bilateral hearing loss disability and tinnitus. The Veteran was diagnosed with a hearing loss disability in accordance with 38 C.F.R. § 3.385 at the January 2011 VA examination. VA and private treatment records also establish a hearing loss disability and constant tinnitus. The first element of service connection is therefore demonstrated. Additionally, the Veteran testified during the August 2017 Board hearing that he was exposed to acoustic trauma during active duty service in Vietnam. He served as a combat infantryman and was exposed to gunfire, mortars, and loud artillery. The Veteran testified that he experienced some hearing loss and tinnitus during active duty that has been consistently present and gradually worsening. He also testified that hearing loss was identified at the time of his out processing at Fort Lewis, Washington, but he did not wish to delay a return home to allow for further testing. He has therefore reported the onset of hearing loss and tinnitus during service and the incurrence of a chronic hearing disability due to in-service injuries. Service records document the Veteran's active duty in Vietnam and he is in receipt of the Combat Infantryman Badge for engaging in combat with the enemy. Service treatment records, specifically the audiograms performed in conjunction with the April 1970 pre-induction examination and January 1972 separation examination, do not establish a chronic hearing loss disability for VA purposes, but do show decreased hearing in the high frequencies. The January 1972 separation examination report also includes a finding of "high loss AS [left ear]" indicating left-sided high frequency hearing loss. This finding combined with the acoustic trauma reported by the Veteran are consistent with the circumstances of his combat service. 38 U.S.C. § 1154(b). The Board therefore finds that the evidence establishes the presence of the first two elements of service connection. The combat presumption contained within 38 U.S.C. § 1154(b) not only applies to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, as the Veteran has reported the onset of hearing loss, tinnitus, and a chronic disability during active duty, 38 U.S.C. § 1154(b) also applies to his contentions regarding the onset of the disabilities during service. See Id. Section 1154(b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. The Veteran testified that he experienced the onset of bilateral hearing loss and tinnitus during service. He is considered competent to describe the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, there is no post-service medical evidence of hearing problems until 2010, almost 30 years after discharge, when private audiograms demonstrated bilateral hearing loss. Despite the lack of corroborating medical evidence, the Veteran has reported the onset of hearing loss and tinnitus during service with a gradual worsening of the conditions during his post-service life. The Board finds these statements are credible. A VA examiner provided medical opinions against the claims in January 2011, but did not properly consider the Veteran's reports of hearing loss and tinnitus during service. Although the January 1972 separation examination does not definitively demonstrate a worsening of the Veteran's hearing during service or a chronic hearing loss or tinnitus disability, with consideration of the Veteran's credible contentions regarding in-service injury and the effect of the law pertaining to this combat Veteran, the Board cannot say that the record contains clear and convincing evidence that the Veteran's disabilities were not present during service. Therefore, service connection is warranted and the claims are granted. See 38 U.S.C. § 1154(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the remaining claims on appeal. Specifically, the Veteran should be provided a VA examination to determine the current severity of his PTSD, and VA medical opinions and private treatment records should be obtained prior to issuing a decision on the claims for service connection. The claim for entitlement to TDIU is inextricable intertwined with the other claims on appeal and a decision on the question of TDIU is not appropriate until the development ordered by the Board has been completed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he execute proper release forms to authorize VA to obtain complete records from any private physicians/facilities that have treated his PTSD, erectile dysfunction, and/or hypertension. He should specifically provide release forms for his private primary care doctor, Dr. Goppold, and urologist, Dr. Goldstein. The claims file contains some records from these providers submitted by the Veteran, but the records are incomplete. If proper medical release forms are received, obtain copies of all available treatment records from Drs. Goppold and Goldstein and any others identified by the Veteran. Copies of the records must be associated with the claims file. All efforts to obtain the records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his PTSD. The claims file must be made available to and reviewed by the examiner. The examiner should identify all current manifestations of the service-connected PTSD. The examiner should also provide an opinion concerning the current degree of social and occupational impairment due to the service-connected psychiatric disability. The complete bases for all medical opinions must be provided. 3. Provide the claims file to a VA examiner with the appropriate expertise to render medical opinions addressing the nature and etiology of the claimed erectile dysfunction and hypertension. After reviewing the complete claims file, the examiner should determine: a) Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's erectile dysfunction is caused or aggravated by service-connected diabetes mellitus. The Veteran reports that diabetes was diagnosed in 2009 and a private urologist diagnosed erectile dysfunction a year later, in 2010. Although he requested a sample of Cialis, a medication used to treat erectile dysfunction and benign prostatic hyperplasia, in 2002, the Veteran states he was merely curious about the sexual effects and did not ask for the medication for any erectile dysfunction. His private doctor provided a statement in July 2013 confirming that the Veteran did not receive treatment for regular erectile dysfunction prior to the development of diabetes mellitus. b) Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's hypertension is caused or aggravated by service-connected disability, including coronary artery disease. The Veteran contends that his hypertension and service-connected heart disease are related conditions and both were identified and diagnosed by a private doctor in 2002. The record before the Board verifies that both conditions were present in 2002, but does not contain an opinion addressing whether hypertension is caused or aggravated by the service-connected disability, including heart condition. The complete bases for all medical opinions must be provided. 4. After completion of the above, readjudicate the issues on appeal, including entitlement to TDIU, with consideration of all the evidence of record. If the complete benefits sought are not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative before returning the case to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs