Citation Nr: 1313599 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-42 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from August 1945 to January 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the RO that denied service connection for asbestosis, bilateral hearing loss, and tinnitus. In October 2012, the Board denied service connection for asbestosis. The claims for service connection for bilateral hearing loss and tinnitus were remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In April 2013, while the case was in remand status, the AMC granted service connection for bilateral hearing loss. The prior denial with respect to tinnitus was confirmed and continued, and the case was returned to the Board. For the reasons set forth below, the Veteran's tinnitus claim is again being REMANDED to the RO, via the AMC. VA will notify the Veteran if further action is required on his part. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c). REMAND Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Pursuant to the Board's October 2012 remand, the AMC sent the Veteran a letter in November 2012 asking him, among other things, to identify relevant records of treatment. The Veteran responded in December 2012, indicating that his only hearing-related treatment had been at the VA Outpatient Clinic in Austin, Texas. Previously, in February 2010, he had asked that medical records be obtained from the VA Community Based Outpatient Clinic in El Paso, Texas, for the period January 1, 2002 to April 1, 2009. Presently, the only VA clinical reports of record are dated in January 2006 and June 2009. None of those reports contains any information related to tinnitus (or hearing loss). A note in the claims file, dated in November 2012, suggests that other relevant, electronic (CAPRI) records of VA treatment might be available, but were not uploaded to the Veteran's electronic (Virtual VA) claims file due to technical difficulties. Because the record suggests that additional, relevant VA clinical records may exist, further development is necessary. If, after the development for VA treatment records has been completed, the record on appeal contains evidence indicating that the Veteran has tinnitus presently-or has had tinnitus at some point during the pendency of his claim-he should again be examined for purposes of obtaining an opinion as to etiology. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.159(c)(4), 19.9 (2012); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Bell v. Derwinski, 2 Vet. App. 611 (1992). For the reasons stated, this case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Take action to ensure that all relevant records of the Veteran's treatment at the VA Outpatient Clinic in Austin, Texas and the VA Community Based Outpatient Clinic in El Paso, Texas are associated with the claims file, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the claims file. 2. If, after the foregoing development has been completed, the record on appeal contains evidence indicating that the Veteran presently has tinnitus-or has had tinnitus at some point during the pendency of his claim (since July 2009)- arrange to have the Veteran scheduled for a VA audiology examination. After reviewing the claims file and all available electronic VA treatment records (or paper copies thereof), examining the Veteran, and performing any studies and/or tests deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has tinnitus that had its onset in service, or can otherwise be attributed to service, to include in-service exposure to noise. In so doing, the examiner should accept, for purposes of rendering the opinion, that the Veteran was exposed to military operations-related noise while stationed in Korea, as alleged. If it is the examiner's conclusion that it is unlikely that the Veteran's tinnitus can be attributed to service, the examiner should offer a further opinion as to whether it is at least as likely as not that tinnitus has been caused or permanently worsened by the Veteran's service-connected bilateral hearing loss. A complete medical rationale should be provided for all opinions expressed. 3. After conducting any additional development deemed necessary, the claim remaining on appeal should again be reviewed. If the benefit sought remains denied, furnish a SSOC to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. 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 (Court) 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). _________________________________________________ MARJORIE A. AUER 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 Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2012).