Citation Nr: 1315161 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-09 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1954. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested to testify via videoconference before a member of the Board, and a Board videoconference hearing was duly scheduled for March 2013. However, the Veteran withdrew his hearing request in January 2013. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND The Board's review of the record reveals that further development on the matter of entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss, is warranted. In his April 2011 claim, the Veteran asserted that his tinnitus originated during active service in January 1954. In an additional statement at that time, he reported that he was assigned to flight line for duty with jet and prop aircraft instead of in an office. In his April 2012 substantive appeal, the Veteran indicated that air bases where he was assigned did not have office equipment repair faculties or an amount of office equipment repairs to require his services on a full time basis. He reported that he went to the flight line to assist the mechanics and others who worked on weapons and aircraft and worked around loud noises quite a bit. The Veteran indicated that he noticed ringing in his ears shortly after he left active duty but did not seek medical care because it did not prevent him from working. While the record shows that the majority of the Veteran's service treatment records were destroyed in a fire at the National Personnel Records Center, the sole record found, the Veteran's October 1954 service separation examination report, contains no finding or diagnosis of tinnitus. Service personnel records in the Veteran's claims file list his occupational specialty as 40150 (Office Machine Repairman). According to an August 2012 VA audio examination report, the Veteran reported that he served in the Air Force for nearly four years during the Korean War, did not participate in combat activity, fired weapons with his right hand, was not part of a hearing conservation program, had flight line duty around jet aircraft, and did not wear hearing protection. The examiner marked that the Veteran did not report recurrent tinnitus. Thereafter, the examiner indicated that there was no diagnosis of tinnitus, as the Veteran had not claimed the condition and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The stated rationale was that there was no claim for tinnitus by the Veteran to render an opinion. In an October 2012 Decision Review Officer decision, the Veteran was awarded entitlement to service connection for bilateral hearing loss. Thereafter, in a March 2013 statement, the Veteran's representative argued that the findings of the August 2012 VA examination were ambiguous and that there had been no discussion on the question of whether the reported tinnitus was secondary to service-connected hearing loss. As an initial matter, the Board finds the August 2012 VA examination report to be inadequate for adjudicative purposes. 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). Here, the conclusions reached by the examiner as well as the assertions of the Veteran in this matter are found to be unclear as to the current nature, onset, and causation of the claimed tinnitus. In light of the cumulative record discussed above, the originating agency should arrange for the Veteran to be afforded an additional VA examination regarding the nature and etiology of the Veteran's claimed tinnitus. The claims file also reflects that the Veteran has received VA medical treatment for his claimed disorder from the VA Medical Center (VAMC) in Muskogee/Tulsa. The record contains a document from the RO dated in March 2012 that shows records from VAMC Muskogee/Tulsa electronically available through the Compensation and Pension Records Interchange (CAPRI) dated from June 2011 to March 2013 were searched for hearing loss/tinnitus treatment. A handwritten note details that actual records found were dated from June to November 2011. In addition, the March 2012 statement of the case clearly referenced records discussing tinnitus dated in June and July 2011. However, as the claims file and Virtual VA file only include an isolated treatment record from the Tulsa VA outpatient clinic (VAOPC) dated June 15, 2012, all additional pertinent VA treatment records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The originating agency should obtain and associate with the record all outstanding, pertinent VA records. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include records from the Muskogee/Tulsa VAMC and Tulsa VAOPC for the period from April 2010 to the present. 2. Then, the Veteran should be afforded a VA examination by an audiologist or physician with sufficient expertise to determine the etiology of his claimed tinnitus. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the record, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion with respect to any tinnitus present during the pendency of the claim as to whether there is a 50 percent or better probability that the disability is etiologically related to the Veteran's active service, to include asserted in-service noise exposure. The examiner should also provide an opinion as to whether there is a 50 percent or better probability that the Veteran's tinnitus was caused or chronically worsened by his service-connected bilateral hearing loss. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the record if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the 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). _________________________________________________ Shane A. Durkin 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).