Citation Nr: 1318190 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-00 068 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for muscle strain of the lower back. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1994 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the RO. In his December 2008 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. Thereafter, in a July 2012 letter, he requested that his hearing request be withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains no additional documents pertinent to the issues on appeal. In September 2007 the Veteran filed a claim of service connection for hypertension. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The issues of service connection for asthma and muscle strain of the lower back are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The currently demonstrated bilateral tinnitus is shown as likely as not to have had its clinical onset due to the Veteran's exposure to hazardous noise levels in connection with his duties while on active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R.§ 3.303 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION While all of the Veteran's service treatment records are not available for review at this time, the Board notes that the Veteran himself has provided copies of apparent medical records referable to the time he was serving on active duty. To the extent that they appear to be copies of the official service treatment records, they serve to provide probative evidence pertinent to the current appeal. Significantly, in a record dated in June 1996, it was recorded that the Veteran was experiencing a hearing impairment from working on the flight deck. Further, the Veteran was noted to have been diagnosed with tinnitus that he described as being a constant buzzing/whistling noise in the ears. When examined by VA in January 2007, the Veteran again complained of a constant ringing in the ears for more than ten years. He reported being exposed to loud noise caused by aircraft and catapult gear while working on the fight deck for his entire period of service. The hearing testing performed at that time was noted to be of poor reliability. However, the VA examiner indicated that the Veteran was suffering from constant bilateral tinnitus. The Veteran related the development of the tinnitus to time he was on active duty and was exposed to hazardous noise levels in connection with his official duties. Accordingly, after reviewing the entire record, the Board finds the evidence to be in relative equipoise is showing that the current tinnitus as likely as not had its clinical onset during service as the result of the Veteran's exposure to excessive and hazardous noise levels. In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran is seeking service connection for asthma and muscle strain of the lower back. The Veteran has submitted several pages of service treatment records which indicate that he may have had prior treatment or diagnoses for asthma and a muscle strain of the lower back during his period of active service. The RO has attempted to obtain the Veteran's complete service treatment records, but unfortunately these records are not available. In November 2004 the RO informed the Veteran that they had been unable to acquire his service treatment records, and a memorandum was issued declaring a formal finding on the unavailability of the service treatment records. The Veteran was requested to submit any additional service treatment records he might have in his possession, but he did not respond to this request. The Board notes that VA has a heightened duty to assist the Veteran in developing his claim since his service treatment records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to an appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). In January 2007, the Veteran was afforded a VA examination for the respiratory system and spine. At the examinations, the examiner diagnosed the Veteran with asthma and lumbosacral strain with early disc disease. However, no opinion as to likely etiology of either disorder or their relationship to the Veteran's service had been requested by the RO or otherwise provided. The current examination reports briefly note the Veteran's reported medical history, including the Veteran's assertion that his lower back pain had its onset during his service. However, the examiners had no access to the claims file, did not review the Veteran's medical records, including the copies of three pages of service treatment records submitted, and made no mention of the likely etiology of the Veteran's currently diagnosed disorders. These examination reports are therefore wholly insufficient to allow the Board to decide the current claims, and the case must be remanded for new VA examinations. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the current VA opinions are inadequate, the RO should arrange for the Veteran to undergo new VA examinations for the respiratory system and spine, with full consideration of the Veteran's reported history and the evidence in the claims file. See Barr, 21 Vet. App. 303. The Veteran is hereby advised that failure to report for any scheduled VA examinations, without good cause, may well result in denial of the claims (as the original claims will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to any scheduled examinations, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. The record also indicates that the Veteran has been receiving medical treatment at the Gainesville VA Medical Center (VAMC) and Lake City VAMC. Currently, the claims file contains his VA treatment records from December 1996 to September 2008. As there may be more recent treatment records directly pertinent to the current issues, all outstanding VA treatment records from the Gainesville and Lake City VAMCs should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take all indicated action in order to obtain from the Gainesville and Lake City VAMCs copies of all outstanding records of treatment of the Veteran related to the claimed low back disorder and asthma since September 2008. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. 2. The RO should then have the Veteran scheduled for a VA examination to determine the current nature and likely etiology of the claimed respiratory disorder, to include asthma. The claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished, to include review of the Veteran's December 2006 pulmonary function testing. Any additional testing deemed necessary should be conducted. After reviewing the entire record and examining the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any current respiratory disability including asthma had its clinical onset during service or otherwise is due to an event or incident of that period of active service. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his lay statements must be taken into account in formulating the opinion. 3. The RO also should have the Veteran scheduled for a VA examination to ascertain the current nature and likely etiology of the claimed lower back condition. The claims file must be made available to the examiner for review, and the examination report must reflect that such review has been accomplished. All appropriate testing should be conducted. After reviewing the entire record and examining the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any current lower back disability had its clinical onset in service or otherwise is due to an injury or other event or incident of the period of active service. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his lay statements must be taken into account in formulating the opinion. 5. The Veteran must be given adequate notice of the date and place of the requested examinations. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 6. The RO must ensure that all medical examination and opinion reports comply with this remand and the questions presented above. The RO 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. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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). \ _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs