Citation Nr: 1309899 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-11 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right eye disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Caucutt, Stephanie INTRODUCTION The Veteran served on active duty from January 1958 to November 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and February 2008 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois. In December 2012, the Veteran testified before the undersigned Acting Veterans Law Judge at hearing held via videoconference; a transcript of that hearing is of record. The Board's decision addressing the matter of entitlement to service connection for tinnitus is set forth below. For reasons discussed after the order, the issue of entitlement to service connection for right eye disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The evidence is in equipoise as to whether tinnitus is etiologically related to service-connected bilateral hearing loss. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, tinnitus is proximately due to service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the claim for entitlement to service connection for tinnitus, because the claim is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). The Veteran asserts that his tinnitus is directly related to acoustic trauma incurred during his active military service. He describes exposure to noise from triple diesel engines while work on a "crash crew" as well as noise from working near jet planes on the flight line. He has described exposure to significant noise during service with resultant ringing in his ears that became especially bothersome in the last five to ten years. The Veteran also submitted a statement from his brother, dated in December 2012, which recounted the Veteran complaining of a "buzzing" in his ears as early as 1963. He also provided a statement from his primary care physician, Dr. Norem, indicating that tinnitus "could have been caused" by his years of military service. Generally, service connection may be established 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(a) (2012). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Additionally, service connection may be granted where a disability is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making its determination, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). This provision is effective October 10, 2006. Because the Veteran's claim was filed prior to that time, and this provision places additional evidentiary requirements upon the Veteran, the Board finds that it does not apply to his claim. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. At a September 2009 VA audiological examination, the Veteran reported the onset of his tinnitus was during his military service. The examiner noted, however, that post-service medical evidence did not support an in-service onset. In that regard, clinical records reflected complaints of ringing in the ears as early as December 1991, but it was noted that this was probably associated with medication. The examiner also pointed out that the Veteran specifically denied any ringing in his ears during a 1998 hearing evaluation, and that he reported a longstanding (twenty-five-year) history of hearing loss but only a five- to ten-year history of constant tinnitus at a July 2006 VA audiological consultation. In view of the foregoing evidence, the examiner felt the onset of the Veteran's tinnitus was not during service or shortly thereafter. As such, she concluded that the onset was too remote in time to relate the Veteran's current disability to service, including noise exposure. The examiner did, however, answer in the affirmative to the question of whether the Veteran's tinnitus is "as likely as not a symptom associated with [his] hearing loss." Although a supporting rationale was not provided, seeking an additional medical opinion where favorable evidence in the record is unrefuted is not in accordance with the uniquely pro-claimant VA adjudication system. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Here, competent evidence clearly indicates that the Veteran has tinnitus; it also shows that he has been awarded service connection for bilateral hearing loss that is related to in-service acoustic trauma. Absent probative evidence contradicting the September 2009 VA examiner's opinion that tinnitus is related to hearing loss, and with consideration of the principle of reasonable doubt, the Board finds that service connection is warranted for tinnitus as the evidence is, at the very least, in relative equipoise as to the issue of whether such disability is secondary to service-connected bilateral hearing loss. See 38 C.F.R. § 3.310. See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for tinnitus is granted. REMAND The Board sincerely regrets further delay to the matter of service connection for right eye disorder. However, review of the record reveals that further action on this claim is warranted. The Veteran asserts that he developed a right eye disorder during service that was corrected post-service with prism eyeglasses. He indicates that during his military career he was assigned to air traffic control and that such duties required him to obtain and maintain certification from the Federal Aviation Administration (FAA). According to him, he passed his first FAA evaluation while stationed at Corpus Christi, Texas. One year later, while assigned to Guam, he failed his FAA evaluation because of a muscle imbalance in his right eye that affected his depth perception. The Navy offered to correct it surgically, but he declined. The Veteran stated that he has worn a prism eyeglass over his right eye since service to correct this problem. In fact, optometry records dated since 2001 show a prism over his right eye. Pertinent to the current appeal, attempts to obtain the Veteran's service treatment records were unsuccessful. The National Personnel Records Center (NPRC) notified VA in January 2007 that the Veteran's records could not be located based upon the information provided (i.e., name, service number, social security number, dates of service, date of birth, etc.). VA thereafter notified the Veteran that his service treatment records were unavailable. In November 2007, the Veteran informed VA that he did not have a copy of his service treatment records, but recommended that VA search his service personnel records as such records would verify his change in assignment due to loss of FAA certification. There is no indication that VA has ever attempted to obtain the Veteran's complete service personnel file, to include any performance evaluations showing his duties and possible qualifications/certifications. Additionally, no attempt has been made to contact the FAA, a Federal agency, to inquire as to whether it has a repository for past certifications and/or medical evaluations. Given the circumstances of this case, the Board finds that a remand is necessary to complete such development. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (holding that VA has a heightened duty to assist a claimant when records are unavailable due to no fault of the veteran or claimant). Further, the Board notes that the Veteran testified at his December 2012 hearing that he was hospitalized for three months during service for mononucleosis. Clinical inpatient records are often filed under the name of the facility rather than the Veteran. Therefore, the RO/AMC should contact the Veteran for additional information regarding his in-service hospitalization, to include the name of the facility where he was hospitalized and the date(s) (to within a two-month window). Based on the Veteran's response, reasonable efforts should be made to obtain any outstanding clinical inpatient records. Finally, recent VA treatment records should be obtained from any appropriate facility, including the Madison VA Medical Center (VAMC). See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to request information regarding his in-service hospitalization for mononucleosis, including the place of such treatment and date(s) of such treatment. Please notify the Veteran that the date provided must be within a two month window. 2. Based on the Veteran's response to the above request, the RO/AMC should make reasonable efforts to obtain any outstanding clinical treatment records from his period of active duty. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Request from the appropriate sources, to include the NPRC and Records Management Center, the Veteran's complete service personnel file, including any administrative remarks, changes in his rating and/or assignment, and performance evaluations. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. Request from the appropriate sources, to include the Federal Aviation Administration (FAA) or any other appropriate government records repository, any information pertaining to the Veteran, including any prior FAA certifications, medical evaluations used to determine such certification, and any reasons why FAA certification was revoked. All records obtained should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 5. Obtain from the Madison VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since July 2006. All records and/or responses received should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 6. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted (including any examination(s)), the RO/AMC should readjudicate the issue of entitlement to service connection for right eye disorder in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim), and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs