Citation Nr: 1303732 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-34 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In addition to denying service connection for tinnitus, the January 2009 rating decision denied service connection for bilateral pneumonia and a left small toe disability. Thereafter, the Veteran entered a notice of disagreement as to such denials and a statement of the case was issued. However, he limited his appeal as to the issue of entitlement to service connection for tinnitus in his substantive appeal (VA Form 9). Inasmuch as the RO had not taken any action to indicate to the Veteran that these issues remained on appeal and it took steps to close the appeal, the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims (Court)'s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not mislead by actions on the part of VA into believing that he had perfected an appeal as to these issues. Therefore, the only issue on appeal is entitlement to service connection for tinnitus. The Board notes that a review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not contained in the paper claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board has determined that further development of the Veteran's claim is warranted. Specifically, the Board has a further duty to assist the Veteran in obtaining evidence and providing him with a VA examination. The Veteran seeks service connection for tinnitus that he attributes to prolonged exposure to acoustic trauma from weapons demonstration and qualifying on rifle and grenade ranges during his active military duty. He further stated that he experienced a lot of difficulty with his ear plugs staying sealed in his ears and on numerous occasions they fell out during maneuvers and drills and he could not stop and reinsert them. Finally, the Veteran has alleged that his tinnitus first began during his active duty and has continued since that time. A Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Similarly, 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In fact, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the VA has not sought a medical opinion with respect to this claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Given, the Veteran's lay testimony regarding his in-service noise exposure, and allegations of continuity of symptomatology and current tinnitus, the Board finds that the low threshold of Mclendon is met and the Veteran should be afforded a VA examination in order to determine the nature and etiology of his tinnitus. The Board notes that in 2009, when the Veteran submitted his VA Form 9, he was incarcerated; however, it is unclear whether he remains incarcerated. VA's duty to assist incarcerated Veterans requires it to tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow Veterans. Bolton v. Brown, 8 Vet. App. 185 (1995); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, on remand, the agency of original jurisdiction (AOJ) should determine whether the Veteran is still incarcerated. Thereafter, the AOJ must either afford him an appropriate formal VA examination, or if that is not possible, coordinate efforts with the correctional facility to accommodate the Veteran by arranging for an examination to be conducted at the correctional facility. If the Veteran remains incarcerated and if it is not possible to have him examined at the prison facility, either by VA or by a medical professional at the correctional institution acting on behalf of VA, in light of Bolton and Wood, the Board concludes that a VA examiner should review the claims file and provide the requested etiological opinion. Additionally, the Veteran indicated that approximately six to eight months after he was discharged, he took a physical for employment and a hearing test was conducted. He stated that, when the ringing in his ears interfered with the testing, he was examined by a physician and was told that he had inner ear damage. The claims file does not contain these records. However, the Veteran indicated in his Form 9 that he could not recall the technician who conducted the evaluation. Even so, while on remand, the Veteran should be given another opportunity to identify any healthcare provider that treated him for tinnitus and provide authorization to enable VA to obtain any private medical records. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any healthcare provider who treated him for tinnitus. After securing any necessary release forms, with full address information, all records of medical treatment for the Veteran's reported tinnitus, which are not currently associated with the Veteran's claims file should be requested. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Confirm whether or not the Veteran remains incarcerated. 3. After completing the aforementioned development, schedule the Veteran for an appropriate examination so as to determine the nature and etiology of his tinnitus. If the Veteran remains incarcerated, the AOJ should consult with prison officials in order to determine whether it is feasible for the Veteran to attend a VA examination or have it conducted at the prison. If neither is possible, the AOJ should request that a medical professional at the correctional facility perform the examination. If the Veteran remains incarcerated and a medical professional at the correctional facility is unwilling or unable to perform the examination, the AOJ should arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner so as to offer an etiological opinion. The AOJ must document all efforts to afford the Veteran a VA examination. The claims file must be made available to the examiner for review. If the Veteran attends a VA examination, a complete history of his tinnitus should be obtained, including any post-service occupational and recreational noise exposure. If he does not, the examiner should note the Veteran's statements in the file pertaining to his tinnitus. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is related to his active duty service, to include his in-service exposure to acoustic trauma. In offering his/her opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his tinnitus as well as the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ A. JAEGER 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).