Citation Nr: 0007597 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 91-38 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 10 percent disabling. 3. Entitlement to an effective date, prior to June 18, 1998, for assignment of an increased (compensable) evaluation of 10 percent evaluation for bilateral hearing loss. 4. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from November 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a) (West 1991), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (1999). The Board has reviewed the veteran's statements regarding the delays associated with the adjudication of his claims. However, based on a total review of the procedural history of this case, the difficulties associated with the adjudication of the veteran's claims are clear. At one point, the veteran has had claims simultaneously before the United States Court of Appeals for Veterans Claims (Court), the Board, and the RO. The veteran has raised different claims at different stages in the adjudication process. Simply stated, the RO has difficulties adjudicating additional claims raised by the veteran when his claims folder is in the possession of either the Court or the Board. Correspondingly, the Board cannot adjudicate additional claims appealed by the veteran when the RO is in the process of adjudicating additional claims subsequently raised. In order to determine what issues are before the Board at this time, the undersigned has reviewed this case in detail. The history of this case is described below. In October 1991, the Board denied the veteran's claim of entitlement to service connection for hearing loss. In his substantive appeal of February 1990, while the veteran noted other disabilities, the sole issue appealed to the Board at that time was the claim of entitlement to service connection for hearing loss. The Board's October 1991 decision was appealed to the Court. During that time, the veteran filed additional claims for VA compensation with the RO. In an October 1993 determination, the RO denied the claim of increased compensation for a shell fragment wound of the right leg and an increased evaluation for post-traumatic stress disorder (PTSD). In a notice of disagreement dated in November 1993, the veteran specifically indicated that he was appealing solely the issue of entitlement to an increased evaluation for PTSD to the Board. At that time, the veteran's case was also pending before the Court. A Statement of the Case on the issue of entitlement to an increased evaluation for PTSD was issued in December 1993 and a timely substantive appeal was submitted by the veteran in January 1994. Accordingly, the issue of entitlement to an increased evaluation for PTSD is before the Board at this time. In July 1993 the Court issued a memorandum decision wherein the Board's October 1991 decision was vacated and remanded for additional proceedings. In October 1993 the issue of entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU) and disability as secondary to Agent Orange (AO) exposure was deferred pending additional development. In April 1994 the RO denied entitlement to a TDIU, and service connection as secondary to AO exposure for hypertension, acne, hearing loss, anxiety, and depression, and arthritis of the right shoulder and right elbow. At that time the RO noted that anxiety and depression were considered in the rating decision of July 1989 wherein service connection had been granted for PTSD. It was indicated that anxiety and depression were included in the PTSD evaluation. A timely notice of disagreement with the April 1994 rating decision was not received by the RO. In June 1994 the veteran filed additional claims for VA compensation. These claims were addressed by the RO in a December 1994 rating determination. At that time service connection was denied for tinnitus, athlete's foot, and a TDIU. The RO also determined that new and material evidence to reopen the claim for service connection for acne, hearing loss, and hypertension had not been submitted. It was further noted that the obsessive-compulsive neuroses cited by the veteran had been included in the PTSD evaluation. The veteran was provided notice of this determination that month. A timely notice of disagreement with the December 1994 rating determination was not received by the RO. In December 1995 the RO denied entitlement to a TDIU. The veteran received notice of this determination in January 1996. Once again, a timely notice of disagreement with this rating determination was not received from the veteran. A Supplemental Statement of the Case was issued by the RO with respect to the issue of entitlement to an increased evaluation for PTSD in February 1996. Following the Court's decision, the veteran's claims folder was transferred to the RO for consideration of issues unrelated to the hearing loss claim. The Board finally received the veteran's claims folder in April 1997. In May 1997 the Board granted entitlement to service connection for hearing loss. Accordingly, the issue of entitlement to service connection for hearing loss is not before the Board at this time. An audiological evaluation was performed in June 1997 to determine the nature and extent of severity of the presently service-connected bilateral hearing loss. At that time, a reference was made to the veteran having complaints of tinnitus since 1978. As a result, the RO, in their August 1997 rating determination, addressed the issue of whether new and material evidence had been presented to reopen a claim of service connection for tinnitus. At that time, the RO noted that this was an inferred claim based on the June 1997 VA audiological evaluation. In August 1997 the RO awarded the veteran a noncompensable evaluation for his bilateral hearing loss based on the June 1997 audiological evaluation. A timely notice of disagreement with the August 1997 rating determination was received by the RO in June 1998. At that time the veteran made reference to both the evaluation of his bilateral hearing loss and service connection for tinnitus. The veteran contended that his bilateral hearing loss and tinnitus should be amended and increased to 100 percent disabling. A Statement of the Case on the issue of entitlement to an increased evaluation for bilateral hearing loss and whether new and material evidence had been submitted to reopen a claim of service connection for bilateral tinnitus was issued by the RO in November 1998. At that time, the RO increased the evaluation for the service-connected bilateral hearing loss from noncompensable to 10 percent disabling. Within the Statement of the Case dated in November 1998, the RO reported that the grant of an increased evaluation for the service-connected bilateral hearing loss was considered a total grant of this claim. The Board cannot agree with this determination. In AB v. Brown, 6 Vet. App. 35 (1993), the Court held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. This is particularly true in light of the veteran's statements in both his notice of disagreement of June 1998 and his substantive appeal of December 1998. Consequently, this issue is before the Board at this time. In December 1998 the veteran raised the claim of entitlement to an earlier effective date for the award of an increased (compensable) evaluation of 10 percent for his bilateral hearing loss. In light of this new claim, the RO issued a Supplemental Statement of the Case addressing the issue of entitlement to an earlier effective date for an increased evaluation for bilateral hearing loss. In April 1999 the veteran stated that he wished to appeal all of the issues listed in the November 1998 Statement of the Case and the recently issued Supplemental Statement of the Case. As stated by the Court, the statute, 38 U.S.C.A. § 7105 (West 1991), does not impose technical pleading requirements. Tomlin v. Brown, 5 Vet. App. 355 (1993). The Board must also review all issues which are reasonably raised from a liberal reading of the veteran's substantive appeal. EF v. Derwinski, 1 Vet. App. 324, 326 (1991). Consequently, the Board will address the issue of entitlement to an increased evaluation for bilateral hearing loss along with the claim of an earlier effective date of this evaluation. In the future, in order to avoid delays in the adjudication of his claims, the veteran may wish to avoid filing additional claims for VA compensation until all previous claims for VA compensation have been fully addressed by the VA. As the Court has stated: "Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation." Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd 972 F.2d 331 (Fed. Cir. 1992). In June 1999 the veteran revoked his representative's power to represent him in these claims. Accordingly, the veteran is unrepresented in his appeal. For reasons which will become clear below, the claim of entitlement to an increased evaluation for PTSD is addressed in the REMAND portion of this determination. The Board's decision in this case is consistent with the decision by the United States Court of Appeals for the Federal Circuit in Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), when it rejected the holding in West v. Brown, 7 Vet. App. 329 (1995) (en banc), that, for jurisdictional purposes, an appeal of a service connection claim includes all benefits potentially available that stem from the essential elements of that claim. Instead, the Federal Circuit held that, for purposes of initiating appellate review, a notice of disagreement applies only to the element of the claim currently being decided, such as service connection, and necessarily cannot apply to the "logical down-stream element of compensation level" if the service connection claim is subsequently granted, either by the Board or the RO on remand from the Board. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The RO denied entitlement to service connection for tinnitus when it issued an unappealed, final rating decision in December 1994. 3. The evidence submitted since the December 1994 determination bears directly and substantially upon the issue at hand, and because it is neither duplicative nor cumulative, and it is significant, it must be considered in order to fairly decide the merits of the claim. 4. The claim of entitlement to service connection for tinnitus is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 5. The cause of the veteran's tinnitus condition cannot satisfactorily be dissociated from the veteran's active service. 6. The June 1997 VA audiological evaluation disclosed an average loss of 39 decibels in both ears with a speech recognition ability of 94 percent in the right ear and 84 percent in the left ear. 7. The average pure tone decibel losses and speech discrimination percentages in June 1997 convert to Roman numerical designation set forth in 38 C.F.R. § 4.85, Table VI, as Level I hearing in the right ear and Level II in the left ear. 8. A July 1998 private audiological evaluation reflects an average of 45 decibels with a speech recognition ability of 72 percent in the right ear, and an average loss of 57.5 decibels with a speech recognition ability of 68 percent in the left ear. 9. The average pure tone decibel losses and speech discrimination percentages for the July 1998 audiological evaluation convert to Roman numerical designation set forth in 38 C.F.R. § 4.85, Table IV, as Level IV hearing in the right ear and Level V in the left ear. 10. Credible medical evidence fails to reveal hearing loss more severe than that noted within the July 1998 audiological evaluation. 11. In November 1998 the RO awarded the veteran an increased (compensable evaluation of 10 percent for his bilateral hearing loss effective from June 18, 1998, under 38 C.F.R. § 4.85, Table VII (1999) and Diagnostic Code 6101 (in effect prior to June 10, 1999). 12. In light of the June 1997 VA audiological evaluation, there is no basis to award the veteran a 10 percent evaluation for his bilateral hearing loss prior to June 18, 1998. CONCLUSIONS OF LAW 1. Evidence received since the final December 1994 determination wherein the RO denied entitlement to service connection for tinnitus is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for tinnitus is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. Resolving the benefit of the doubt in the veteran's favor, tinnitus has been caused by either the veteran's active service or his service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 4. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6101 (in effect prior to June 10, 1999) and 38 C.F.R. §§ 4.85, 4.86 (1999). 5. The criteria for an effective date, prior to June 18, 1998, for assignment of an increased (compensable) evaluation of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In December 1994 the RO denied entitlement to service connection for tinnitus. The veteran was notified of this determination that month. The RO never received a timely notice of disagreement with this determination. In May 1997 the Board granted the claim of entitlement to service connection for hearing loss. In order to determine the nature and extent of its severity, the RO, in June 1997, had the veteran's hearing evaluated. During this evaluation, the veteran contended that he had tinnitus since his service in Vietnam. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 55 65 LEFT 5 40 50 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 84 percent in the left ear. The veteran indicated that he did not hear everyday sounds and that he was confused where certain sounds originated. It was also noted that he misunderstood words and asked people to repeat themselves often. An examination of the ears, nose, and throat revealed that they were intact. The veteran was diagnosed with sensorineural hearing loss in both ears. In August 1997 bilateral hearing loss was found to be noncompensable based on the findings of the June 1997 audiological evaluation. In light of the reference to tinnitus within this VA examination report, the RO reviewed the issue of whether new and material evidence adequate to reopen the claim of service connection for tinnitus had been submitted. It was determined that new and material evidence had not been submitted to reopen this previously denied claim. In June 1998 the veteran filed a notice of disagreement with the August 1997 rating determination. He contended that service connection for tinnitus was warranted because it was causally related to his acoustic trauma sustained in service. It was contended that his disability rating for bilateral hearing loss and tinnitus should be amended and increased to 100 percent. In order to fully resolve this issue the RO obtained an independent medical opinion at the expense of VA. This audiological evaluation was performed in July 1998. At that time the veteran noted bilateral hearing impairment and bilateral tinnitus since 1965. He noted that he had been exposed to artillery noises, rocket blasts, small arms fire, and other loud noises during his active service. It was indicated that he had worn two hearing aids for the past year. Physical examination of the ears was normal. A review of medical records by the examiner noted several prior audiograms with configurations "similar" to the one performed at that time. On an audiological evaluation performed that month, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 60 65 LEFT 30 55 65 80 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 68 percent in the left ear. The board-certified otolaryngologist noted that the veteran had moderate to severe sensorineural loss, bilaterally, that was largely due to noise exposure while in the Marines. It was stated, in pertinent part, that tinnitus arose at the same time as the hearing loss and it should be attributable to the same cause. In light of the independent medical expert opinion of July 1998, the RO, in a November 1998 rating determination, awarded the veteran a 10 percent disability evaluation for his bilateral hearing loss from June 18, 1998. In a November 1998 Statement of the Case, the RO correctly noted that medical records were negative to references of tinnitus during the veteran's active service. The RO also noted that there was no evidence of head injury, concussion, or acoustic trauma in service. The RO determined that while the veteran may have had exposure to the noises of modern warfare, the evidence did not show that he incurred tinnitus in service, within the one-year presumptive period following service, or that tinnitus was otherwise related to service. As a result, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for bilateral tinnitus. In a December 1998 substantive appeal, the veteran raised the issue of entitlement to an earlier effective date for the award of a 10 percent evaluation for bilateral hearing loss. He contended that the compensable evaluation should be retroactive to the original first filing of the claim, as allegedly supported by the record. It was again contended that tinnitus was causally related to acoustic trauma sustained in service. A Supplemental Statement of the Case on the issue of entitlement to an earlier effective date for an increased evaluation for bilateral hearing loss was issued by the RO in March 1999. In April 1999 the veteran noted that he wished to dispute every item in both the recent Statement of the Case and Supplemental Statement of the Case that was not fully consistent with the facts and arguments set forth in his substantive appeal of December 1998. In June 1999 the veteran withdrew the authority of his representative to represent him before VA. Accordingly, the veteran is unrepresented in this appeal. In March 2000 he stated that he would request his case be advanced on the docket because of clear and unmistakable error by VA that caused a "significant delay in docketing of my appeal over seven years earlier. In this regard, the Board must note that the veteran currently holds a 1991 docket number based on the substantive appeal filed in January 1994 regarding the claim of an increased evaluation for PTSD. As the Board is adjudicating these claims at this time, the veteran's request for an advance on the docket is rendered moot. Criteria & Analysis Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise previously provided by regulation. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). Despite the finality of a prior final RO decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Court has held that VA is required to review for its newness and materiality only the evidence submitted by an appellant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Board must reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7105(c) (West 1991) and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) (1999) provides as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. New evidence is evidence which (1) was no tin the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court in Elkins v. West, 12 Vet. App. 209 (1999), announced a post-Hodge three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Since the RO initially denied this claim in December 1994, the RO has received new and material evidence warranting the reopening of this claim. The July 1998 independent medical opinion from a board-certified otolaryngologist has clearly stated that the veteran's tinnitus arose at the same time as his hearing loss and it should be attributable to the same cause. Under Hodge, the Board finds that this evidence alone is sufficient to warrant reopening the claim. Accordingly, the Board will proceed with the adjudication of the claim on a de novo. Under Elkins, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that, in general, a claim for service connection is well grounded when three elements are satisfied. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. With respect to the first prong of the Caluza analysis, a review of the medical records indicates that the veteran has been diagnosed with tinnitus. With regard to the second prong of the Caluza analysis, the service medical records and immediate post service medical records are silent concerning any tinnitus condition. However, the RO has conceded that the veteran was exposed to loud noises during his active service. The veteran has also contended that he has suffered from tinnitus since this exposure to loud noise in service. Service personnel records indicate that the veteran was awarded the Purple Heart Medal. Accordingly, it must be found that the veteran was exposed to combat during his active service in the Vietnam War. As a result, 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (1999) are applicable in this case. Accordingly, the Board finds that the second prong of the Caluza analysis has been met. With respect to the third prong of the Caluza analysis, nexus evidence, the July 1998 medical opinion clearly provides nexus evidence associating the exposure to loud noise in service with the veteran's current tinnitus disorder. Accordingly, as the veteran has met all three prongs of the Caluza analysis, the claim is well grounded. Under Elkins, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim. In this case, the evidence that supports the veteran's claim is his exposure to loud noises during his active service and the July 1998 independent medical opinion. The evidence that does not support the veteran's claim includes the veteran's failure to file a claim for this disability until many years after his discharge from active service as well as the service medical records, which make no reference to tinnitus. In weighing the probative value with the veteran's statements, the Board must consider the "reasonable doubt" doctrine. The codification of the "reasonable doubt" standard is contained in 38 C.F.R. § 3.102 (1999), which provides, in pertinent part: When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in the favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. In this case, based on the evidence as a whole, the Board concludes that the negative evidence is at least balanced by the positive evidence. Accordingly, the Board finds that the claim of entitlement to service connection for tinnitus should be granted. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based on average industrial impairment. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In evaluating the service-connected disability, the Board considers the current evaluation reports in light of the whole recorded history to ensure that the current rating accurately reflects the elements of the disability present. 38 C.F.R. § 4.2. The Board also considers the validity of the veteran to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. VA changed the regulations pertaining to the evaluation of hearing loss during the course of the veteran's appeal. These changes became effective June 10, 1999. When a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has not had the opportunity to evaluate the veteran's claim under the new regulations. However, in this case, the Board believes that a remand to afford the RO an opportunity to review the veteran's claim is not necessary. The pertinent regulations do not contain any substantive changes that affect this particular case, but generally add certain provisions that were already the practice of VA. 38 C.F.R. § 4.85 (1999). The frequencies used for the evaluation of hearing loss, the percentage of speech discrimination used for the evaluation of hearing loss, and the tables used to determine the level of hearing impairment and the disability evaluation of each level of hearing impairment have not been changed. The veteran has already been afforded the hearing tests required by the new regulations, and these were used by the RO in the evaluation of his claim. Therefore, the Board is able to evaluate this claim under the new regulations without prejudice to the veteran, and will proceed with consideration of the appeal. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Under the regulations in effect prior to June 10, 1999, the evaluations of unilateral defective hearing range from zero percent to 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry test in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected hearing loss, the revised rating schedule establishes 11 auditory acuity levels, designated Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110 (in effect prior to June 10, 1999). Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi¸ 3 Vet. App. 345 (1992). As noted above, the June 1997 audiological evaluation revealed an average loss of 39 decibels in both ears with a speech recognition of 94 percent in the right ear and 84 percent in the left ear. The average pure tone decibel losses and speech discrimination percentages in June 1997 convert to Roman numerical designation of Level I hearing in the right ear and Level II in the left ear. This finding warrants a noncompensable evaluation. The independent medical expert opinion of July 1998 found an average loss of 45 decibels with a speech recognition ability of 72 percent for the right ear, and an average loss of 57.5 decibels with a speech recognition of 68 percent in the left ear. The average pure tone decibel losses and speech discrimination percentages for the July 1998 audiological evaluation convert to Level IV hearing in the right ear and Level V in the left ear. This demonstrated bilateral hearing acuity warrants a 10 percent evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6101 (in effect prior to June 10, 1999) or under 38 C.F.R. §§ 4.85, 4.86 (1999). Under either the previous or amended criteria for evaluating the veteran's hearing loss, a disability evaluation in excess of 10 percent is not warranted. The findings of the independent medical expert of July 1998, which provided the basis to grant service connection for tinnitus, and the June 1997 VA audiological evaluation are entitled to great probative weight in determining the nature and extent of severity of the veteran's current bilateral hearing loss. There is no basis to conclude that the first audiological evaluation was either more accurate or less accurate than the second. While the results of the June 1997 audiological evaluation would not warrant a compensable evaluation for the veteran's bilateral hearing loss, the July 1998 audiological evaluation would provide for a 10 percent evaluation. The RO, obviously taking into consideration the doctrine of reasonable doubt, has awarded the veteran a 10 percent evaluation based on the July 1998 audiological evaluation. In this regard, the Board must find that the RO has fulfilled the duty to assist the veteran in the development of his claim by obtaining not only an audiological evaluation but an independent medical expert opinion paid for by VA. The veteran has not cited to any medical record that would support his contention that he is entitled to a 100 percent disability evaluation for bilateral hearing loss. In this regard, it should be noted that 38 C.F.R. § 4.86(a) is not for application in this case as the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) are not 55 decibels or more. In any event, an increased evaluation under either Table VI or Table VI(a) is not warranted. In deciding this claim, the Board has considered the Court's determination in Fenderson v. West, 12 Vet. App. 112 (1999) and whether the veteran is entitled to an increased evaluation for a separate period of time based on the facts found during the appeal period. The Board will address this issue when it evaluates the claim of entitlement to an earlier effective date. The Board has also considered the issue of whether the veteran is entitled to an increased evaluation under 38 C.F.R. § 3.321(b)(1) (1999). However, based on a review of the current evidence of record, the Board finds that the issue of extraschedular entitlement under 38 C.F.R. § 3.321(b)(1) has not been raised by the record. See Fanning v. Brown 4 Vet. App. 225, 229 (1993) and Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992). The Board finds no evidence to indicate that the veteran's hearing loss has caused hospitalizations or has caused him to lose work. In this regard, the Board has reviewed the Social Security Administration (SSA) determination regarding the veteran's employability. Significantly, no reference is made to the veteran's hearing loss. There is no medical opinion of record that he is unemployable due to his service-connected hearing loss. Thus, the contention that the veteran is not employable due to his hearing loss is without foundation. In any event, the claim of entitlement to a TDIU was adjudicated by the RO and not appealed by the veteran. Accordingly, it is not before the Board at this time. Entitlement to an effective date, prior to June 18, 1998, for assignment of a compensable evaluation of 10 percent for bilateral hearing loss for bilateral hearing loss. The veteran contends that he should be awarded a compensable evaluation for bilateral hearing loss on the date he filed his initial claim for VA compensation for this disability, October 2, 1989. However, while there were indications of hearing loss from 1989 to 1998, including a May 1989 medical report indicating that he be continued off work until further notice due to hypertension, severe anxiety, PTSD, and progressive hearing loss, as well as his employer's records (indicating hearing loss in 1979), there is absolutely no medical evidence of record to support the conclusion that a 10 percent evaluation was warranted prior to July 1998. The audiological evaluation of June 1997, which found evidence indicating that the veteran was entitled to a noncompensable evaluation for this disability, clearly supports the conclusion that the veteran was not entitled to a compensable evaluation for this disability until 1998. 38 U.S.C.A. § 5110(a) provides, in pertinent part: Unless specifically otherwise provided in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application thereof. In this case, the RO has awarded the veteran a compensable evaluation based on the audiological testing performed in July 1998. Based on the audiological testing performed in June 1997, there is no basis to award the veteran a compensable evaluation. Nevertheless, the RO awarded the veteran a 10 percent disability evaluation for bilateral hearing loss from June 18, 1998. It is unclear why the RO has provided the veteran with a 10 percent disability evaluation for bilateral hearing loss from June 18, 1998. The audiological testing performed in June 1997 did not provide a basis to award a compensable evaluation for this disability. Nevertheless, the RO, apparently in light of the July 1998 testing, awarded a compensable disability evaluation from June 18, 1998. While the medical evidence would support the conclusion that the veteran was entitled only to a compensable evaluation for this disability from July 20, 1998, the day of the independent medical expert evaluation, the issue before the Board at this time is whether an earlier effective date is warranted, not whether the effective date for the award should actually be later than it is at this time. As there no evidence to support the conclusion that the veteran was entitled to an effective date of June 18, 1998, for a 10 percent evaluation for his bilateral hearing loss, there is even less evidence to support the conclusion that the veteran is entitled to a compensable evaluation prior to this date. In this regard, there is absolutely no evidence that suggests that the hearing testing performed in June 1997 was inaccurate. Significantly, while the veteran has cited to a bilateral hearing loss disability since his discharge from service, he has failed to provide any audiometric testing results which would support the conclusion that he was entitled to a compensable evaluation for this disability until 1998. The fact that the veteran may have had hearing difficulties does not necessarily support the conclusion that he was entitled to a compensable evaluation for this disability. The audiometric testing performed in June 1997 clearly supports this conclusion. The RO has determined that, on June 18, 1998, there was sufficient evidence to suggest that the veteran warranted a 10 percent evaluation for this disability. As noted above, the issue of whether the effective date of this award should be made later, rather than earlier, is not directly before the Board at this time. This case has clearly provided difficulties to the RO, and the Board would not dispute this determination in light of the nature of the veteran's contentions presented throughout his claims. Accordingly, the Board will not order a later effective date for the 10 percent award. Still, the evidence of record clearly does not support a determination that the bilateral hearing loss was 10 percent disabling prior to June 18, 1998. Accordingly, this claim is denied. ORDER The veteran having submitted new and material evidence to reopen a claim of entitlement to service connection for tinnitus, the appeal is granted in this regard. The veteran has submitted a well grounded claim of entitlement to service connection for tinnitus. Entitlement to service connection for tinnitus is granted. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an effective date, prior to June 18, 1998, for assignment of an increased (compensable) evaluation of 10 percent for bilateral hearing loss is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. With regard to the veteran's claim of entitlement to an increased evaluation for PTSD, the Board must note that, since he filed this claim several years earlier, the criteria for rating PTSD were revised effective November 7, 1996. 38 C.F.R. §§ 4.125 to 4.130 (1999). The provisions of 38 C.F.R. § 4.132 were amended and redesignated as 38 C.F.R. § 4.130. This is significant because, under the new regulation, the criteria used for determining the severity of PTSD have substantially changed, focusing more on individual symptoms as manifested throughout the record, rather than on medical opinions characterizing overall social and industrial impairment as, for example, "totally incapacitating, severe, or considerable." In the Supplemental Statement of the Case issued in February 1996 the RO appears to have used the old rating criteria. The Board finds that the current medical reports of record do not contain adequate specific findings as to the enumerated criteria contained in the revised regulation. Absent such findings, whether they be positive or negative, the Board concludes that the record is inadequate for rating purposes. 38 C.F.R. § 4.2 (1999). Therefore, in light of Massey v. Brown, 7 Vet. App. 204, (1994), the Board finds that a contemporary VA examination, in accordance with the newly implemented diagnostic criteria, would be of probative value in the veteran's appeal. A VA psychiatric examination is needed to delineate the symptoms attributable to the service-connected PTSD and to obtain an opinion as to the severity of the disorder which would include an assessment using the Global Assessment of Functioning (GAF) scale. Accordingly, the case is REMANDED to the RO for the following development. 1. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. Initially, the veteran is asked to avoid (if possible) the filing of any additional claims with the RO until the claim for an increased evaluation for PTSD is fully adjudicated by the Board. This is asked in order to avoid any additional delays in the adjudication of the sole issue before the Board at this time. 3. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim for an increased evaluation for PTSD. After securing any necessary authorization or medical releases from the veteran, the RO should attempt to obtain copies of those treatment records from all sources identified by him whose records have not been previously secured, including all recent treatment of the veteran's PTSD as well as any medical records in the possession of the Social Security Administration based on their granting of the veteran's claim. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 4. The RO should arrange for a VA psychiatric examination of the veteran for the purpose of ascertaining the current nature and extent of severity of PTSD. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination, and the examiner must annotate the examination report that such review was undertaken. The purpose of this evaluation is to determine the degree of disability associated with the veteran's PTSD. If there are different psychiatric disorders other than PTSD, the examiner must attempt to reconcile the diagnoses and specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, that fact should be specified. All necessary special studies or tests are to be accomplished. The examiner must assign a GAF score for each psychiatric disorder diagnosed. The examiner must define the score assigned. The basis for any conclusions should be explained, and any social and industrial impairment should be specifically noted. The Board must note that previous testing of the veteran, including testing performed in June 1993 and February 1991, indicate that the veteran may exaggerate his symptoms. The examiner should take this into consideration in making the determination cited below. In this respect, the psychiatrist must identify the frequency and severity of all findings, as well as enumerate all symptomatology, particularly with respect to: a) The veteran's affect, speech, memory, judgment, abstract thinking, mood and impulse control; b) The veteran's ability to perform the activities of daily living, including his ability to maintain personal hygiene; c) The presence or absence of hallucinations and/or delusions; the presence or absence of grossly inappropriate behavior; the presence or absence of depression; the presence or absence of panic attacks, and if panic attacks are present, their frequency; d) The veteran's ability to adapt to stressful circumstances in a work or work like setting, and his ability to obtain and maintain employment; e) Commentary concerning the presence or absence of suicidal and/or homicidal ideation, obsessional rituals, and/or any disorientation would be of great value to the Board. If the historical diagnosis of PTSD is changed following examination, the examiner should state whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner must express an opinion as to the impact of PTSD on the veteran's ability to obtain and retain substantially gainful employment, and if in fact PTSD has rendered the veteran unemployable. Any opinions expressed must be accompanied by a complete rationale. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any development deemed essential in addition to that specified above, the RO should review the claim for increased rating, with a broad and liberal interpretation of the applicable regulations and legal precedent, consistent with 38 C.F.R. §§ 4.3 and 4.7 (1999), and with consideration of the previous as well as amended rating criteria for PTSD. The RO should also document its consideration of the applicability of the criteria under 38 C.F.R. § 3.321(b)(1). The veteran is advised that any additional claims will not be before the Board unless the determination of the RO is unfavorable, and the veteran files a notice of disagreement and completes all procedural steps necessary to appeal a claim to the Board in accordance with 38 U.S.C.A. § 7105 (West 1991). If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and provided a reasonable period of time for a response. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion, legal or factual, as to any final outcome warranted. The veteran need take no action until notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Error! Not a valid link