Citation Nr: 1207167	
Decision Date: 02/27/12    Archive Date: 03/09/12

DOCKET NO.  06-36 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus. 

2.  Entitlement to service connection for residuals of a left shoulder injury. 

3.  Entitlement to service connection for hypertension.   


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to September 1967. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In that decision, the RO denied service connection for hypertension.  This matter is also on appeal from a September 2005 rating decision of the RO in Louisville, Kentucky, which granted service connection and an initial evaluation of 10 percent for tinnitus and denied service connection for a left shoulder injury.  The RO in Louisville, Kentucky, now has jurisdiction of the Veteran's claims file.  

In November 2009, the Board remanded the Veteran's claims.  The VA Appeals Management Center (AMC) continued the previous denial of the claims in an October 2010 supplemental statement of the case (SSOC).  Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings.

The issues of entitlement to service connection for hypertension and residuals of a left shoulder injury 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's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.





CONCLUSION OF LAW

There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks entitlement to an increased initial disability rating for his service-connected tinnitus.  In the interest of clarity, the Board will discuss certain preliminary matters.  The issue on appeal will then be analyzed, and a decision rendered.

Stegall Concerns

As alluded to above, in November 2009, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to obtain outstanding Social Security Administration (SSA) records and associate these records with the Veteran's claims folder.  The Veteran's claim was then to be readjudicated.  

Pursuant to the Board's remand instructions, the AMC contacted the SSA in attempt to obtain any outstanding SSA records, and documented the attempt to obtain the records in the claims folder.  The Veteran's tinnitus claim was readjudicated via the October 2010 SSOC.  

Accordingly, the Board's remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].  




The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010), was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2011).

In the instant case, the facts are not in dispute.  Resolution of the appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus.  As will be shown below, the Board finds that the Veteran is already receiving the maximum disability rating available for tinnitus under the applicable rating criteria.  Furthermore, regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral, the outcome of this appeal does not change. 

Therefore, because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).

Higher Evaluation for Tinnitus

Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2011).  

In Smith v. Nicholson, 19 Vet. App. 63 (2005), the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  

VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, which limits a veteran to a single schedular disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.

The maximum schedular rating available for tinnitus is 10 percent.  38 C.F.R. § 4.87, Diagnostic Code 6260.  See 38 U.S.C.A. § 1155 (West 2002).  As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for tinnitus in each ear, the Veteran's appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus is denied.


REMAND

Service Connection for Hypertension and Residuals of a Left Shoulder Injury

For reasons expressed immediately below, the Board finds that the issues of entitlement to service connection for hypertension and residuals of a left shoulder injury must be remanded for additional evidentiary development.





Evidentiary development

In a statement dated February 2010, subsequent to the Board's November 2009 remand, the Veteran indicated that he received recent treatment at the VA outpatient clinic in Mountain Home, Tennessee, for his hypertension and left shoulder disability.  The Board observes that the most recent VA treatment records associated with the Veteran's claims folder are dated August 2006.  Moreover, it does not appear that any attempt to obtain these records was made by VA following receipt of the Veteran's February 2010 statement.  Notably, the AMC did not document any attempt to obtain these records in the October 2010 SSOC.

The procurement of such pertinent VA medical reports is required.  Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record").  In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder.

VA examination for left shoulder injury

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011).

In this case, the Board finds that a VA medical opinion is necessary with respect to the Veteran's claim of entitlement to service connection for residuals of a left shoulder injury prior to further appellate consideration.  38 C.F.R. § 3.159(c)(4).  In particular, the Veteran contends that he injured his left shoulder in service which caused his current left shoulder disability.  See, e.g., the Veteran's claim for VA benefits dated September 2004.  

The Board initially notes that the Veteran is competent to attest to experiencing an injury to his shoulder.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  Additionally, the Veteran's service treatment records document treatment for a left shoulder strain in January 1966.  Although the remainder of the Veteran's service treatment records, to include his September 1967 separation examination, are absent complaints of or treatment for a left shoulder disability, the Board finds that evidence of an in-service injury is arguably met.

None of the medical records currently associated with the Veteran's VA claims file offer an opinion as to a possible causal relationship between the Veteran's left shoulder disability and his period of military service.  

The duty to assist requires that a medical opinion be provided when necessary to decide a claim.  Because the evidence of record does not include a medical opinion based on a complete review of the Veteran's claims file that discusses the likelihood that the Veteran's current left shoulder disability was incurred in or aggravated by his active service, the Board concludes that a VA medical opinion is needed in order to render a decision in this case.  See Charles v. Principi, 16 Vet. App.  370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim].  

Accordingly, the case is REMANDED for the following action:

1. The RO should request any records from the VA outpatient clinic in Mountain Home, Tennessee, after August 1, 2006, pertaining to the Veteran's hypertension and left shoulder disabilities.  All attempts to secure this evidence must be documented in the claims folder by the RO.

If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim.  The Veteran must then be given an opportunity to respond.
  
2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his left shoulder disability.  The Veteran's claims folder must be made available to the examiner prior to the examination.

All tests and studies deemed necessary by the examiner should be performed.  Based on a review of the claims folder and the clinical findings of the examination, the examiner must:

a)  Identify whether the Veteran currently suffers from a left shoulder disability.

b)  If the Veteran currently suffers from a left shoulder disability,  provide an opinion, as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of military service, to include his treatment for a left shoulder strain in January 1966.
 
The examiner should indicate in his/her report that the claims file was reviewed.  A rationale for all opinions expressed should be provided.  A report should be prepared and associated with the Veteran's VA claims folder.  

In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.
   
3. When the development requested has been completed,             the case should be reviewed by the RO on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) 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 matter or matters the Board has remanded.  See 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. 2011).



______________________________________________
JASON R. DAVITIAN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs