Citation Nr: 1802266 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation greater than 30 percent for PTSD. 2. Entitlement to an initial compensable rating for hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Ashley Brooke Thomas, Attorney at Law ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011and December 2011 rating decisions of the St Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to an initial evaluation greater than 30 percent for PTSD and entitlement to an initial compensable rating for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Tinnitus is not shown to have been manifested during service or within one year of the Veteran's separation from service and is not otherwise shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include tinnitus, as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for tinnitus). 38 U.S.C.A. §§1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Turning to the evidence of record, the Veteran was afforded an examination in November 2011. The examiner noted that the Veteran reported recurrent tinnitus that started with a gradual onset about one year before the examination. The Veteran described his tinnitus as a constant bilateral ringing rated at a "9" on a loudness scale of 1 to 10. The examiner determined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The opinion was based on the Veteran's reported date of onset, which was approximately one year before the November 2011 examination. The examiner also noted that a review of the Veteran's case file was conducted but found that no medical evidence existed to relate the Veteran's reported onset of tinnitus to the military noise exposure that was incurred almost 40 years prior to the exam. A review of the Veteran's service treatment records shows that in January 1972, the Veteran reported a problem with his right ear that was diagnosed as external otitis of the right ear, which appeared to be associated with a cold. The examiner prescribed ear drops, Actifed, and lozenges. Furthermore, his January 1973 separation examination reported normal ears with no mention of tinnitus or ringing of the ears. The record does not show the Veteran's tinnitus manifested in service, and service connection for tinnitus on the basis that it manifested in service and has persisted is not warranted. Accordingly, since tinnitus did not manifest in service or in the first post-service year, the chronic disease presumptive provisions of 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board has also considered whether service connection for tinnitus is warranted based on continuity of symptomatology. However, continuity of tinnitus symptomatology is not shown. The Veteran reported an onset of tinnitus recent to his November 2011 VA examination, and his military noise exposure was incurred almost 40 years prior to that examination. Therefore, the Board finds service connection for tinnitus on the basis of continuity of tinnitus symptomatology is not warranted. The only medical opinion evidence in the record directly addressing the matter of a nexus between the Veteran's tinnitus and his service is in the November 2011 VA examination. The Board finds that the November 2011 VA examination report is entitled to substantial probative weight. The examiner reviewed the Veteran's claims file and included adequate rationale for the conclusion reached by citing an absence of medical evidence that could relate the Veteran's tinnitus to his military service in addition to the Veteran's own statement that his tinnitus began around one year prior to the November 2011 examination. The Veteran's lay assertions that his tinnitus is related to service are not persuasive. Laypersons are competent to provide opinions on some medical issues. However, as was noted, without evidence of continuity, the etiology of the Veteran's tinnitus is a matter outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lastly, he does not cite to any supporting medical opinion or medical literature evidence. In summary, the evidence of record establishes that the Veteran's tinnitus was not manifested in service or in the first post-service year; that continuity of the Veteran's tinnitus symptomatology is not shown; and that such disability is not otherwise shown to be etiologically related to the Veteran's service to include as due to exposure to noise trauma therein. The preponderance of the evidence is against the claim. Accordingly, the appeal in this matter must be denied. ORDER Service connection for tinnitus is denied. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the claims for increased ratings. The Board notes it appears that the Veteran was last afforded a VA examination to assess the severity of his service-connected PTSD disability in August 2010. Recent VA treatment records reflect that the Veteran was seen in March 2017 to report memory problems associated with his PTSD. Furthermore, a Primary Care Case Manager Note from October 2014 details that the Veteran's wife reported he was "hearing things", made threats to her, and that he was arrested and sent to a VA psych facility. As a result, there is an indication that the Veteran's PTSD symptoms have increased in severity. To ensure that the record reflects the current severity of the Veteran's service-connected PTSD on appeal, a more contemporaneous examination is warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). In December 2013, the Veteran reported that he felt his hearing acuity had decreased in addition to ear pain. The Board notes that the Veteran's last hearing loss exam was in November 2011. Since there is an indication that the Veteran's hearing loss symptoms have increased in severity, a new exam is required to ensure the record reflects the current severity of the Veteran's service-connected hearing loss disability on appeal. Additionally, on remand, the Veteran's complete VA treatment record should be obtained and made part of his record. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records pertaining to the Veteran's service-connected PTSD and to his service-connected hearing loss. 2. Thereafter, schedule the Veteran for a VA examination to assess the current severity of his service-connected PTSD. The claims folder should be made available to and reviewed by the examiner in connection with the examination. 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 industrial impairment resulting from the service-connected PTSD. A full rationale must be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. 3. Also schedule the Veteran for a VA audiological examination, conducted by a state-licensed audiologist, to evaluate his service-connected bilateral hearing loss. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs