Citation Nr: 1312372 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-30 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from August 1972 to August 1974. He subsequently had over 25 years of service in the Marine Corps Reserves, and was activated for Desert Storm/Desert Shield service from November 1990 to May 1991. This matter is before the Board of Veterans' Appeals (Board) from a September 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for hypertension and tinnitus. In March 2008, the Veteran appeared at the Board's offices in Washington, D.C., and testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2008 and April 2010, the Board remanded the case for additional development. In a June 2011 rating decision, the RO granted service connection for hypertension and assigned an evaluation of 0 percent, effective August 18, 2004, which was a complete grant of the benefit sought on appeal for that issue. As such, that issue is no longer before the Board for appellate consideration. In March 2012, the Veteran raised the claim of entitlement to an increased, compensable rating for the service-connected hypertension. As it is not shown that the higher rating issue has been adjudicated by the RO, it is referred to the RO for appropriate consideration. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In the April 2010 remand, the Board requested the RO to obtain certain VA medical records dated prior to September 2004. These records would include a report of a Persian Gulf War Registry examination, which the Veteran testified to having taken in 1991. The RO requested such records and essentially obtained duplicative VA clinical records dated beginning in 2004 (although certain laboratory findings dated in 1994 are included in the laboratory reports). There was no indication in the file as to whether the requested clinical records including the Persian Gulf War Registry examination report are unavailable. Another search for the records, to include a search in any archive record repository, should therefore be made. Also in the April 2010, the Board remanded the case in part to obtain another VA medical opinion that would address whether hypertension was a possible underlying etiology for the claimed tinnitus. Historically, in a report of a May 2009 VA audiology examination, the VA examiner concluded that the etiology of the Veteran's tinnitus was unknown but that it was less likely than not caused by or a result of active military service. The examiner discussed factors such as hearing loss and hypertension that may be correlated with tinnitus. The examiner stated that hypertension was a "possible" underlying etiology for tinnitus but found no mention of any association between tinnitus and hypertension in the record. In the April 2010 remand, the Board asked that the VA examiner furnish an opinion as to whether it is at least as likely as not that the Veteran's claimed service-connected hypertension caused or aggravated the diagnosed tinnitus. Notably, the examiner's opinion was contingent upon whether it was found that the Veteran's current hypertension either had onset during active service or had initially manifested to a compensable degree within the first year following the Veteran's discharge from active service in August 1974 or May 1991. In an August 2010 examination report, the VA examiner did not address whether the Veteran's tinnitus was caused by or aggravated by the service-connected hypertension because development of the hypertension matter had not yet been completed. It was not until January 2011 that a favorable VA medical opinion was obtained, indicating the Veteran's hypertension most likely developed prior to his discharge from active duty service in May 1991. Thereafter, the RO in a June 2011 rating decision granted the Veteran's claim of service connection for hypertension. In light of the foregoing, an addendum opinion is needed to take into account any additional VA medical records that may be added to the file and to address the matter of secondary service connection. Where, as here, the requested development has not been completed, further action is necessary to comply with the remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran Veterans Claims Assistance Act of 2000 (VCAA) notice consistent with Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim of secondary service connection, and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim), in regard to the issue of service connection for tinnitus on a secondary basis. 2. Obtain all pertinent medical records of the Veteran from the VA medical facility located in Washington, DC, dated from May 1991 to August 2004. Such records should include a report of a Persian Gulf War Registry examination that the Veteran underwent, allegedly in 1991. Efforts to obtain the records should include a search of any archived records, if necessary. If these records cannot be obtained, a notation to that effect should be inserted in the file. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 3. After the foregoing development has been completed, return the August 2010 VA (audiological) medical opinion to the examiner who reviewed the file and authored the opinion of August 2010 (and the May 2009 opinion). The complete claims file and a copy of this remand must be sent to the examiner. Request the examiner to furnish an addendum opinion as to the following: (a). In light of any additional VA medical records added to the claims file since the previous review, is it at least as likely as not (a 50 percent or greater degree of probability) that the Veteran's currently demonstrated tinnitus began during service or was causally linked to any incident therein to include acoustic trauma; and (b). Is it at least as likely as not (a 50 percent or greater degree of probability) that the Veteran's currently demonstrated tinnitus was caused by or aggravated by his service-connected hypertension. The examiner must explain the rationale for all opinions. In formulating the clarifying opinion, the term "as likely as not" does not mean within the realm of possibility; rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The term "aggravation" means a permanent increase in the underlying disability, that is, an irreversible worsening of the tinnitus disability beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms. If, however, after a review of the record, the examiner concludes that there is insufficient information to provide the requested opinion without resort to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the nature of the Veteran's tinnitus disability. If the August 2010 VA examiner is unavailable, forward the claims file to another examiner who is competent to address the questions posed in this case regarding the Veteran's tinnitus. 4. Following completion of the foregoing development requested, readjudicate the Veteran's claim of service connection for tinnitus, to include on a secondary basis. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate period of time allowed for response. 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 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). _________________________________________________ Debbie A. Breitbeil Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).