BVA9504188 DOCKET NO. 93-10 435 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from August 1968 to May 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a June 1992 rating decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), which granted service connection for PTSD, assigning a 10 percent evaluation, and denied entitlement to service connection for tinnitus and entitlement to a compensable evaluation for bilateral, high frequency, sensorineural hearing loss. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant's representative in a February 1995 letter of the additional evidence developed, and provided an opportunity to respond. The representative has responded, and the case is again before the Board. The appellant contends that there was clear and unmistakable error in a July 1984 rating decision because it did not address a claim of entitlement to service connection for tinnitus that had been raised by him. This claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he has experienced ringing in his ears since service as a result of his exposure to acoustic trauma during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that there is an approximate balance between the positive and negative evidence presented as to the appellant's claim of entitlement to service connection for tinnitus. Because the VA is required by statute to extend reasonable doubt to a veteran when the evidence as to a particular claim is in equipoise, we find that service connection is warranted for tinnitus. FINDINGS OF FACT 1. The appellant is service-connected for bilateral, high frequency, sensorineural hearing loss. 2. Tinnitus cannot be disassociated from the appellant's service-connected bilateral, high frequency, sensorineural hearing loss. CONCLUSION OF LAW Tinnitus is proximately due to or the result of service-connected bilateral, high frequency, sensorineural hearing loss. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Tinnitus is not shown to have been reported during the appellant's active military service. Audiometric testing at his May 1972 separation medical examination revealed findings that were diagnosed as bilateral, high frequency hearing loss. At a July 1978 private audiological evaluation, conducted for the VA, the examining audiologist reported a clinical impression of mild to moderate sensorineural type loss of hearing bilaterally in the higher frequencies above 2000 hertz. Summary of audiological assessment, dated July 21, 1978 An audiological evaluation was conducted for the VA by J. M. Carlisle, III, M.D., in July 1984. It was reported by way of history that the appellant had sustained a traumatic blast injury to his ears in Vietnam in 1970, at which time he totally lost his hearing for three days, and that since that time he had experienced severe hearing loss in the higher frequencies and a bilateral constant ringing tinnitus. It was reported that most of the appellant's difficulty in hearing was in ambient noise. The impression was bilateral, mid and high frequency, sensorineural loss in the moderate to severe range, secondary to blast injury. Report of audiological evaluation by J. M. Carlisle, III, M.D., performed on July 2, 1984. VA outpatient medical records dated in 1991 show a complaint of ringing in the ears in March 1991, and VA audiological evaluations in May 1991 and May 1992 show diagnoses of moderate to severe, bilateral, high frequency, sensorineural hearing loss, and complaints of severe tinnitus. Chronic tinnitus may be causally or etiologically related to sensorineural hearing loss. Robert W. Baloh, The Special Senses, in 2 Cecil Textbook of Medicine, 2098, 2107-2108 (James B. Wyngaarden, M.D., et al. eds., 19 ed. 1992). As the pathology underlying the appellant's current tinnitus cannot be clearly disassociated from his service-connected bilateral, high frequency, sensorineural hearing loss, the Board has determined that the evidence pertaining to the claim of entitlement to service-connection for tinnitus is in equipoise. When there is an approximate balance of the positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the benefit of the doubt is extended to the appellant, and service connection is granted for tinnitus on a secondary basis. ORDER Service connection is granted for tinnitus. REMAND The appellant argues that his service connected PTSD is more severely disabling than currently evaluated, thereby warranting a higher rating. He claims that he was awarded Social Security Administration (SSA) benefits in 1990, based primarily on the degree of disability associated with his psychiatric disability. He also claims that not all of the records of treatment for psychiatric problems during the last several years have been associated with his claims file. The Board notes that the VA psychiatric examination conducted in May 1992 did not include an assessment of the appellant's functioning ability. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). The Court has stated that the VA's statutory duty to assist includes seeking to obtain SSA records because SSA determinations are relevant to a determination of whether a veteran is able to secure and follow a substantially gainful occupation under 38 C.F.R. § 4.17 (1992). See Waddell v. Brown, 5 Vet.App. 454 (1993); Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Collier v. Derwinski, 1 Vet.App. 413 (1991); See also Brown v. Derwinski, 2 Vet.App. 444 (1992); Masors v. Derwinski, 2 Vet.App. 181 (1992); Washington v. Derwinski, 1 Vet.App. 459 (1991). Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the SSA's Office of Disabilities Operations, Security West, Tower Building, 1500 Woodlawn Drive, Baltimore, Maryland, 21241, for the purpose of obtaining a copy of any decision awarding the appellant Social Security benefits and copies of the evidence utilized by the SSA in reaching that decision. The appellant should be requested to complete and sign any necessary forms that will ensure that such evidence is promptly forwarded to the RO. All records received should be placed in the claims file. 2. The RO should contact the appellant and request that he provide the names and addresses of any health care providers from whom he has received psychiatric treatment since 1988, and, if possible, specify the appropriate dates of treatment. Then, after any necessary authorization is obtained from the appellant, the RO should obtain copies of all treatment records for the appellant from the health care providers identified and associate them with the claims file. 3. The RO should schedule the appellant for a comprehensive VA psychiatric examination. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed., 1994), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 4. Following completion of the foregoing, the RO must review the claims file and ensure that all of the requested development has been conducted and completed in full. If any development is incomplete, including absence of all test reports, special studies, or opinions requested as part of the examination, appropriate corrective action is to be implemented. After the above requested actions have been completed, the RO should review the appellant's claim of entitlement to an increased evaluation for his PTSD with regard to the additional evidence obtained. If that benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.