Citation Nr: 1300104 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 09-31 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision and a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The February 2008 decision, in pertinent part, denied service connection for tinnitus and for a left knee disorder. The December 2009 decision denied service connection for a right knee disorder. The Veteran testified at a hearing held before the undersigned VLJ in July 2011. A transcript of this hearing is associated with the claims file. In December 2011, the Board, inter alia, remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development of the record, to include providing VA examination and medical opinion, and contacting the Veteran to clarify the issues on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Unfortunately, the appeal must again be REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The medical evidence is not sufficiently developed to adjudicate the claim for service connection for tinnitus. As noted, the Veteran's claim was remanded in December 2010 for development of the medical record, to include obtaining a VA examination for the purpose of determining the etiology of the Veteran's claimed tinnitus. A VA Disability Benefits Questionnaire for hearing loss and tinnitus was completed in February 2012, in which an audiologist noted a medical history positive for reported recurrent tinnitus. However, the audiologist indicated that there was no date, event, or circumstance of onset reported in relation to the complaint for tinnitus, and the Veteran did not give any statement to the audiologist regarding when he first began to notice or experience tinnitus. The audiologist noted that the claims file was reviewed, and opined that it was less likely than not (less than 50% probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. The audiologist explained that the Veteran gave no report of having tinnitus during the examination; no report of the frequency or duration of the tinnitus; no report of any date, event, or circumstance of onset of tinnitus; and no report of impact on daily activities by tinnitus. The audiologist noted that the service medical records were silent for complaints of tinnitus and the claims file was silent for complaints of tinnitus within one year of service. The audiologist concluded that tinnitus was less likely than not caused or related to disease or injury in service. The Board notes, the United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Id. The Board finds the February 2012 VA audiologist's rationale to be inadequate because the audiologist failed to explain the conflicting findings of the Veteran's lay testimony, in which he described experiencing constant ringing in his ears since service, and the report of a January 2008 VA audiology examination, in which that audiologist observed that the Veteran reported periodic tinnitus that occurred once every 2 weeks and lasted for a few seconds at a time. The January 2008 audiologist also noted that the Veteran reported the onset date as "unknown" but indicated that it had been "off and on for years." The February 2012 VA audiologist did not address the clinical or lay record in any specific or meaningful way in the report. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the evaluation of medical evidence involves inquiry into the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); and Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that further examination and a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any tinnitus symptoms that may be present. Also, on remand in December 2010, the Board requested that the RO/AMC seek clarification as to whether the Veteran was claiming entitlement to service connection for his right knee or his left knee, both, or neither. In January 2012, the AMC sent the Veteran a letter to a "Willoughby Hills, Ohio" address, and requested that he provide clarification as to whether he was claiming entitlement to service connection for his right knee, or his left knee, both, or neither. A second request was mailed to the same address in March 2012. The Veteran failed to respond to both requests for clarification. In September 2012, the AMC issued a Supplemental Statement of the Case (SSOC) to a "Franklin, Ohio" address, which denied the claims for service connection for both knees. In a November 2012 Informal Hearing Presentation, the Veteran's representative noted that there were many addresses on file for the Veteran, and acknowledged that none of the aforementioned correspondence was returned as undeliverable. However, after contacting the Veteran by phone, his representative reported that he denied receiving any written correspondence from VA since his hearing, and provided a new address in "Ashtabula, Ohio." The representative acknowledged that the Veteran is responsible for notifying VA of any address changes, and indicated that a VA Form 119, Report of Contact, dated in November 2012, shows an update in VACOLS of the Veteran's address was requested. The representative requested that the case again be remanded so that the RO/AMC may contact the Veteran for clarification, and if applicable, schedule him for an appropriate VA examination. The Court has held that in the normal course of events, it is the burden of a claimant to keep the VA apprised of his or her whereabouts. If he or she does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him or her. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). However, as the Veteran has recently provided a change of address and phone number, and as he still has not provided clarification as to which, if any, knee disorder is currently on appeal, the Board finds that another attempt should be made to contact him and request clarification as to these claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be scheduled for an examination by a qualified audiologist, or a similarly qualified clinician, to express an opinion about the causes and development of his claimed tinnitus. The purpose of the examination is to determine whether it is at least as likely as not that the Veteran has tinnitus that had its onset during the Veteran's active service, or is otherwise related to any incident of service to include noise exposure. The following considerations will govern the examination: a) A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA eFolder. The examiner is asked to confirm whether paper and/or electronic records were available for review. b) The examiner will be advised: i) The purpose of the examination is to ascertain whether it is at least as likely as not that the Veteran has tinnitus as a result of any in-service noise exposure. ii) The Veteran is presumed to have been exposed to acoustic trauma during his active military service. iii) The Veteran is competent to testify as to observable symptoms such as ringing in his ears, and tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). c) The examiner must provide a complete explanation/ rationale for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 2. After the above has been completed, the RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. The RO/AMC must also contact the Veteran at the most recent known address (noted in his representative's November 2012 Informal Hearing Presentation) and ask him to provide clarification as to whether he is claiming entitlement to service connection for his right knee or his left knee, both, or neither. This notice should include the criteria for the withdrawal of the Substantive Appeal by the Veteran as to a claim for service connection. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). 4. If and only if the Veteran provides a response to the request for clarification for the knee issues and identifies which, if any, issues are remaining on appeal, the RO/AMC should schedule him for a VA examination with an appropriate specialist to determine the nature and etiology of any current knee disability. 5. The RO/AMC must readjudicate the issue(s) remaining on appeal. If any benefit sought remains denied, the RO/AMC must provide the Veteran and his representative an SSOC and an appropriate period of time for response. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2011). _________________________________________________ K. PARAKKAL 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) (2012).