Citation Nr: 0813503 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-41 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for left knee disability. 4. Entitlement to service connection for back disability. 5. Entitlement to service connection for right ankle disability. 6. Entitlement to service connection for left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from September 1967 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The issues of entitlement to service connection for right knee disability, left knee disability, back disability, right ankle disability, and left ankle disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran has tinnitus which is related to noise exposure he experienced in service. CONCLUSION OF LAW With resolution of reasonable doubt in the veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The veteran alleges he developed tinnitus from noise exposure in service. Specifically, at the March 2008 hearing, he stated that when he served in Vietnam in combat, he was exposed to heavy artillery fire, including M16 machine guns, and helicopters. He stated that he noticed having tinnitus as early as 1975 and that he had it now. The veteran has been granted service connection for bilateral hearing loss, as a medical professional determined it was as likely as not that the veteran's current hearing loss was attributable to noise exposure in service. In the December 2004 VA audiological evaluation report, the audiologist stated the veteran denied having current tinnitus. At the March 2008 hearing, the veteran explained that he had tinnitus at the time of the examination, but that he did not understand what symptoms were involved with tinnitus, which was why there was a misunderstanding with the audiologist. The veteran is competent to report having noise exposure in service, which the Board finds is credible and consistent with his service. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). He is also competent to state that he has ringing in the ears (as opposed to stating he has tinnitus, which would require a professional opinion), as that is an observable symptom of tinnitus. The remaining issue is whether the veteran has established a nexus between the current disability and the in-service report of noise exposure. As stated above, service connection for hearing loss has been awarded, and tinnitus and hearing loss are closely-related disabilities. The Board finds that it cannot disassociate the veteran's report of ringing in the ears from the noise exposure in service, and with resolution in the veteran's favor, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND At the March 2008 hearing, the veteran stated that he was in receipt of Social Security disability benefits for his knees. These records must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining Social Security Administration decision and supporting medical records pertinent to VA claim). The veteran also testified he had received treatment for his knees from Dr. Kennedy in the 1980s. An attempt to obtain these records (and any other outstanding medical records) should be made. Lastly, the Board finds that a VA examination is warranted regarding the claims for service connection for right and left knee disabilities, as the veteran has brought forth competent evidence of current disability, which may be related to service. See 38 U.S.C.A. § 5103A(d) (examination or opinion is necessary to make decision on claim when record (1) contains competent evidence that claimant has current disability or persistent or recurrent symptoms of disability; (2) contains evidence which indicates disability or symptoms may be associated with claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make decision); see also 38 C.F.R. § 3.159(c)(4) (2007). The veteran has not, however, brought forth competent evidence of current disability or recurrent symptoms of disabilities associated with his back and right and left ankles to warrant an examination. If, however, evidence showing current disability related to these areas is associated with the claims file, an examination should be scheduled. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Social Security Administration the records pertinent to the veteran's disability claim, as well as the records relied upon concerning that claim. If records pertaining to such claim and medical evidence utilized in processing such claim are not available, that fact should be entered in the claims file. 2. The RO/AMC should request that the veteran identify all private or VA medical records regarding treatment for disabilities involving his knees, back, and ankles, to include treatment for his knees from Dr. Kennedy in the 1980's. Then, the RO/AMC should make every effort to obtain the records identified by the veteran. 3. The RO/AMC should schedule the veteran to undergo a examination to determine whether any current right and left knee disabilities are attributable to service. Following an examination and a review of the claims file, the examiner should provide an opinion as to whether it is as likely as not (50 percent probability or greater) that any current right and left knee disabilities is/are related to service. A complete rationale should be given for any opinion and conclusion expressed. If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate. 4. The RO/AMC should evaluate whether an examination is necessary for the remaining issues on appeal. 5. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case and be 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 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 Supp. 2007). _______________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs