Citation Nr: 21023845 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-05 499 DATE: April 21, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to restoration of a 70 percent rating for posttraumatic stress disorder (PTSD) from April 1, 2016 is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his tinnitus is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1970 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of July 2013 and January 2016 of the Agency of Original Jurisdiction (AOJ). In February 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Tinnitus The Veteran filed his claim in August 2011 which was denied by rating action of July 2013. As explained below, the Board finds service connection is warranted. The Veteran contends that the ringing in his ears is related to working on heavy equipment in service and when he was in Vietnam. See Hearing Transcript at 3, 4. He further stated that although tinnitus began in service, it is more noticeable since he is no longer active. Id. at 5. The record shows that acoustic trauma due to his military occupational specialty has been conceded. In fact, the Veteran is already service connected for bilateral hearing loss. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Board finds no reason to doubt the Veteran’s credibility. The Board also finds that the Veteran is competent to report the occurrence of such symptoms since they are within his realm of personal and firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Indeed, the Board acknowledges the June 2012 VA contract examiner finding that the Veteran’s recurrent tinnitus is less likely the result of military noise exposure. However, in the rationale the examiner indicated that no military audiograms were found in the file and that the opinion was based on report of late onset of tinnitus and history of occupational noise exposure. Taking all medical and lay statements into account, the Board concludes that the evidence is in relative equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to restoration of a 70 percent rating for PTSD from April 1, 2016. By rating action of January 2016, the AOJ reduced the evaluation of Veteran’s PTSD from 70 percent to 50 percent effective April 1, 2016. The record shows the Veteran was issued a statement of the case (SOC) in August 2016, which was timely appealed to the Board in September 2016. However, the Veteran was issued another Supplemental Statement of the Case (SSOC) in October 2017. The appeal was subsequently certified to the Board in December 2017. Since the issuance of the October 2017 SSOC and after the appeal was certified to the Board, additional information in the form of VA treatment records as of January 2018, Disability Benefits Questionnaire (DBQ) for PTSD completed by the Veteran’s non-treating physician dated February 2019 and April 2019, and recent VA contract examinations for PTSD dated January 2021, and additional lay statements have been associated with the claims folder. The additional information, which is relevant to the Veteran’s issue on appeal, was not considered by the AOJ as required under 38 C.F.R. § 19.31(b)(1). The Board notes that initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran’s appeal to the Board is dated after February 2, 2013, as it is in this case. However, this automatic waiver does not apply to VA-generated evidence, such as VA treatment and examination records that were not submitted by the Veteran. 38 U.S.C. § 7105(e). Further, waiver of the right to a SSOC that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. Accordingly, the claim on appeal must be remanded for consideration of the additional evidence and issuance of another SSOC. See 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: Review the record and any newly submitted evidence (including VA contract examinations, DBQs, and VA treatment records associated with the claims file following the issuance of the October 2017 SSOC), and readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the agency of original jurisdiction should provide the Veteran and his representative with a SSOC. An appropriate period of time should be allowed for response. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.