Citation Nr: 1807280	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-38 582	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus. 

3.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Arif Syed, Counsel


INTRODUCTION

The Veteran served on active duty from August 1960 to July 1963 and from September 1964 to August 1968. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2014 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The Board notes that evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for a bilateral hearing loss disability and entitlement to an increased disability rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran was exposed to acoustic trauma in service and there is credible evidence of a continuity of symptomatology of tinnitus from service.  


CONCLUSION OF LAW

Tinnitus may be presumed to have been incurred in service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. 
§§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).

The Veteran contends that his current tinnitus was incurred in or is otherwise related to his service.  Specifically, he alleges that he began experiencing tinnitus during service.  Thereafter, he experienced a continuity of tinnitus symptoms that gradually worsened over time.  

The Veteran reported in an April 2014 statement that he was exposed to acoustic trauma during service from performing his duties as a track vehicle repairman.  He further reported that he has had constant tinnitus since service.  Notably, the Veteran's DD 214s document his MOS as a heavy vehicle driver and a track vehicle repairman which is consistent with exposure to acoustic trauma.  In light of the foregoing, the Board will presume that the Veteran was exposed to acoustic trauma in service.  

Significantly, as a lay person, the Veteran is competent to diagnose tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002).  A layperson also is competent to testify as to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service.  See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, there is evidence of both in-service acoustic trauma and a continuity of symptomatology from service.  The Board is somewhat troubled by the absence of reports of tinnitus in service and for some years thereafter.  However, the Board finds the Veteran's reports of a continuity of symptomatology to be credible and the Veteran has not provided any contradictory statements as to the onset of the tinnitus.  

The Board acknowledges that VA audiological examiners opined in July 2014 and August 2014 reports that it is not likely that the Veteran's tinnitus is related to service and provided rationales for their opinions.  The Board does not find this evidence sufficient to overcome the presumption that tinnitus was incurred in service.

Given the foregoing, the Board concludes that entitlement to service connection for tinnitus is warranted on a presumptive basis.  38 C.F.R. § 3.309(a).


ORDER

Entitlement to service connection for tinnitus is granted. 


REMAND

With regard to the Veteran's bilateral hearing loss disability and PTSD claims, during a VA examination dated November 2014 for the Veteran's PTSD, the Veteran reported that he is in receipt of Social Security Administration (SSA) disability benefits.  There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file.  Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).

Additionally, the record reflects that last association of VA treatment records with the claims folder was in January 2017.  As the Veteran has received regular mental health treatment for his PTSD, the Board finds that on remand, an attempt should be made to identify and associate all outstanding records with the Veteran's claims folder.  In this regard, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record").  

Moreover, as the Veteran has received regular mental health treatment for his PTSD since his most recent VA examination for the PTSD which was in November 2014, and the treatment records indicate a worsening of his PTSD symptoms since then such as increased depression, the Board finds that the Veteran should be provided a VA examination to determine the current severity of his PTSD.  See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination].

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. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, in any, to include any medical records obtained in connection with the application.  Any materials obtained should be associated with the Veteran's VA claims folder.
If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).  The Veteran must then be given an opportunity to respond.

2. Request any outstanding VA treatment records pertaining to the claims remanded herein, to include treatment records dated after January 2017.  All attempts to secure this evidence must be documented in the claims folder.

3. Provide the Veteran with an appropriate VA examination to determine the current symptoms and severity of his service-connected PTSD.  The claims folder must be made available to the examiner.  

All tests and studies deemed necessary by the examiner should be performed.  In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability.    

The examiner must also provide information concerning the functional impairment that results from PTSD which may affect his ability to function and perform tasks in various occupational situations. 

4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or 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 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).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs