Citation Nr: 1016232 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 08-13 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for back disorder, claimed as back pain. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to July 2007. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an October 2007 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's representative in March 2010 raised the issue of clear and unmistakable error in the RO's March 2008 decision regarding evaluation of bilateral knee disability- charging that the RO erred by not applying a bilateral factor to the assigned evaluation. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Veteran seeks service connection for back pain and tinnitus. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With respect to the claim for a back disorder, service treatment records show complaints of back pain and joint pain/stiffness in February 2005. In May 2007, he denied arthralgias - musculoskeletal symptoms. In August 2007, he reported recurrent back pain during VA treatment. In view of the report of recurrent back pain both in service and following service discharge, an examination is necessary to ascertain whether there is a back disability attributable to disease or injury incurred in service. With respect to the claim for tinnitus, service treatment records show no complaints or findings for tinnitus and, in January 2003, the Veteran specifically denied ringing in the ears. However, in September 2003, he was assessed with eustachian tube dysfunction. Additionally, a treatment note dated February 2005 reflects that he had exposure to loud noise and that he wore ear plugs. An August 2005 Occupational Health Examination indicated that the Veteran's workplace was responsible for minor routine aircraft maintenance between flights; it was noted that he was enrolled in a Hearing Conservation Program and provided ear plugs along with US Safety Muffs to protect from noise. Hearing Conservation Data records are silent for tinnitus, but reflect steady noise exposure and use of personal hearing protection to include hand formed earplug and triple flange. In an August 2007 statement, the Veteran reported that he worked on the flight line and around aircraft and ground equipment. He stated that he had a "tone in my ears that is very high pitched and constant." Post service VA treatment records dated August 2007 to May 2008 are silent for complaints or findings for tinnitus. On review of the record, the Board finds that remand is necessary for an examination and medical opinion. Of note, the Veteran is competent to report a high pitch sound in his ears; however, a medical examination and opinion is needed to ascertain whether tinnitus related to service, to include due to noise exposure or eustachian tube dysfunction. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the Boise VA Medical Center for the period from October 2008 to the present. 2. Schedule the Veteran for an examination to ascertain whether there is any current abnormal back pathology related to service. All indicated tests and studies should be performed. All abnormal back pathology should be identified in the report of examination. The claims folder must be available for review. The examiner should opine on whether any currently-found abnormal back pathology is likely, as likely as not, or unlikely related to service. A complete rationale for all opinions is required. 3. Schedule the Veteran for an examination to ascertain whether tinnitus is present and, if yes, whether tinnitus is related to service, to include noise exposure and/or eustachian tube dysfunction. All indicated tests and studies should be performed. The claims folder must be available for review. If tinnitus is found, the examiner should opine on whether tinnitus is likely, as likely as not, or unlikely related to service. A complete rationale for all opinions is required. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. 2009). _________________________________________________ L. HOWELL 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).