Citation Nr: 1007948 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 05-17 979 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for status post coronary artery disease (CAD). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to February 1954. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision issued by the RO, which denied the Veteran's claims for service connection for tinnitus and coronary artery bypass. Most recently, in May 2007, the Board denied the Veteran's claims for service connection for tinnitus and status post CAD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In May 2008, the Court granted a Joint Motion to vacate the May 2007 decision and to remand the matter for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the May 2008 Joint Motion, the parties agreed that in the May 2007 decision, the Board failed to give adequate reasons and bases to support its decision. With respect to the Veteran's claim for service connection for tinnitus, the parties agreed that the Board's review did not include consideration of all pertinent records. Specifically, the parties noted that a March 2003 VA treatment record cited in the October 2004 VA examination report which gave a negative opinion with regard to etiology of the tinnitus, was not associated with the claims file. To that end, this record pertaining to VA treatment has not been associated with the record certified for appellate review. VA medical records that are not in the claims file are nevertheless considered part of the record on appeal since they are within VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also VAOPGCPREC 12- 95. This record may be of significant probative value in determining whether service connection for claimed tinnitus may be granted. Thus, the RO must obtain complete copies of the Veteran's VA treatment records, specifically to include VA treatment record dated March 17, 2003. VA regulations provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, such as the VA medical facility. VA will end such efforts to obtain records only if VA concludes that the records sought do not exist or that further efforts to obtain the records would be futile. See 38 C.F.R. § 3.159(c)(2). If the RO is unable to obtain any of the above records, or after continued efforts to obtain any of the above records it is concluded that it is reasonably certain that they do not exist or further efforts to obtain them would be futile, the Veteran should be notified accordingly. See 38 C.F.R. § 3.159(e). In addition, an August 1952 service treatment record noted that the Veteran complained of right ear pain after a blank was discharged next to his ear. Loud noise aggravated the pain. On objective examination, no defect was found except for old drum scarring from old otitis. An audiogram was recommended if he later complained of tinnitus. Post service medical records document the treatment he received for complaints of tinnitus. In an application for compensation or pension benefits, received in December 1981, the Veteran related that he last worked in September 1981 as a heavy equipment operator. An April 1982 VA examination report contained no reference to hearing loss or reports of tinnitus. In an October 2004 VA examination report, the audiologist noted the Veteran's exposure to gunfire and atomic blast in service, as well as his occupational noise exposure as a heavy equipment operator and his recreational noise exposure as a hunter. The examiner concluded that although the Veteran reported a short-duration tinnitus following exposure to the atomic test blast, that tinnitus resolved prior to discharge from the military. The audiologist indicated that the current tinnitus onset in 2003, was likely related to some other somatic condition, rather than as a result of history of military noise exposure. In an September 2006 VA audio examination report, the audiologist opined, in pertinent part, that it was likely that the tinnitus was related to military noise exposure. However, the examiner did not mention the Veteran's post- service occupational noise exposure as a heavy equipment operator or his recreational noise exposure as a hunter. The Veteran contends that his tinnitus onset in 1953, following the atomic blast exposure. Since that time he has noticed a gradual worsening of his tinnitus, especially over the past three to four years. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Given his contentions, in light of the varying opinions regarding etiology, the Board finds that a more contemporaneous VA examination is necessary to reconcile any discrepancy and clarify etiology of the claimed tinnitus. With respect to the Veteran's claim for service connection for CAD, the parties agreed that the Board failed to adequately explain why a VA examination addressing the etiology of the disorder was unnecessary. The Board is aware that the Veteran complained of a history of heart trouble prior to service and received treatment for chest pains during his period of service. There were no physical findings noted. On his separation examination, a soft grade #1 systolic murmur was detected at the aortic area and a grade #2 systolic murmur was detected at the pulmonic area; however, it was indicated that neither was considered disabling. Post service medical records document the treatment the Veteran received for his heart disorder. Relevant diagnoses were severe aortic stenosis; CAD. The Veteran contends that his current disability, CAD, is a result of the heart murmur detected during his separation examination. Given these contentions, in light of the in-service complaints and findings and currently diagnosed disorder, the Board finds that a VA examination is necessary to clarify etiology of the claimed coronary artery disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009), the need for additional evidence regarding his claim. This letter should reflect all appropriate legal guidance. See e.g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC/RO should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, that treated the Veteran for his tinnitus and CAD. After he has signed the appropriate releases, those records, specifically to include March 2003 VA treatment records, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Only after the above development has been accomplished, the Veteran should be afforded a VA audiological examination to determine the nature, extent and likely etiology of the claimed tinnitus. All indicated tests and studies are to be performed, and comprehensive pre- and post-service recreational and occupational histories are to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims file and the clinical findings of the examination, the examiner should opine as to whether tinnitus at least as likely as not (e.g., a 50 percent or greater likelihood) had its onset in service or is otherwise etiologically related to his period of service. The examiner should address and include specific discussion of the conflicting medical evidence of record, namely the October 2004 VA examination report (concluding the current tinnitus onset in 2003 and was likely related to some other somatic condition rather than as a result of history of military noise exposure) and September 2006 VA examination (finding the tinnitus was likely related to military noise exposure). A complete rationale must be given for all opinions and conclusions expressed in a typewritten report(s). 4. Only after the above development has been accomplished, the Veteran should be afforded a VA heart disorder examination to determine the nature, extent and likely etiology of the coronary artery disease. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims file and the clinical findings of the examination, the examiner should specifically identify/diagnosis the Veteran's current heart disorder, if found, and opine as to whether any such current heart disorder at least as likely as not (e.g., a 50 percent or greater likelihood) had its onset in service or is otherwise etiologically related to his period of service. A complete rationale must be given for all opinions and conclusions expressed in a typewritten report(s). 5. The Veteran must be given adequate notice of the date and place of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 6. After completion of all indicated development, the Veteran's claims should be readjudicated in light of all the evidence of record. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2009). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).