Citation Nr: 1321983 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-03 241 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for tinnitus, to include as due to exposure to herbicides, or as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. His decorations include the Vietnam Service Medal and Combat Infantryman Badge. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision in which the RO denied service connection for tinnitus. Later that month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. The Board notes that the Veteran has advanced alternate theories in support of his claim. In an October 2008 application for compensation, the Veteran asserted that his tinnitus was attributable to in-service exposure to noise and/or herbicides. In a separate submission received later that month, he raised the issue of entitlement to service connection for tinnitus as secondary to service-connected PTSD. In light of those assertions, the Board has expanded the issue on appeal as reflected above, on the title page. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains additional evidence, which the Board has reviewed. For the reasons expressed below, the matter on appeal (expanded to include service connection for tinnitus as due to exposure to herbicides, and as secondary to service-connected PTSD) is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that the Veteran's electronic claims file contains, among other things, a September 2010 rating decision in which the RO denied his claim for a total disability rating based on individual unemployability (TDIU). The electronic claims file also contains a letter from the RO to the Veteran, dated in October 2010, acknowledging receipt of an NOD with respect to the RO's September 2010 rating decision. Thus far, it does not appear that an SOC with respect to that claim has been issued. Ordinarily, if an NOD has been filed with respect to a particular rating decision, and no SOC has been issued, the Board will remand the matter to the RO for issuance of an SOC. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Here, however, the NOD reportedly filed by the Veteran is not contained in the paper or electronic claims files presently before the Board. As such, the requisite basis for a remand is absent. Nevertheless, the matter is referred to the RO for appropriate action, to include, inter alia, associating the document acknowledged as an NOD with claims file and, if appropriate, issuing the Veteran an SOC on his claim for TDIU, along with a VA Form 9, and affording him the appropriate opportunity to submit a substantive appeal to perfect an appeal of that issue. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. As noted above, the Veteran has asserted that his tinnitus is attributable to in-service exposure to noise and/or herbicides. He has also raised the matter of service connection for tinnitus as secondary to service-connected PTSD. The Board notes that, in evaluating the Veteran's claim, the RO has not explicitly considered service connection for tinnitus on the basis of exposure to herbicides, or as secondary to service-connected PTSD. Hence, to avoid any prejudice to the Veteran, the RO should consider those theories of entitlement, in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). However, prior to such consideration, the Board finds that further development of the matter on appeal is warranted. In January 2009, the Veteran underwent VA audiological evaluation. The audiologist opined, in effect, that it was not likely that the Veteran's tinnitus could be attributed to noise exposure in service. No opinion was offered as to the likelihood that his tinnitus could be attributed to exposure to herbicides, or the likelihood that it was secondary to service-connected PTSD. (The Board notes, parenthetically, that, with respect to the latter theory, there appears to be at least some medical support for an association between tinnitus and PTSD. See The Association Between Tinnitus and Posttraumatic Stress Disorder, American Journal of Audiology, Vol. 16, pp. 107-117 (Dec. 2007). An abstract of this article has been associated with the claims file.) Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because the January 2009 opinion does not address the Veteran's theories that his tinnitus may be due to exposure to herbicides, or that it is secondary to his PTSD, the Board finds that the opinion is inadequate, and that a new examination and opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the Veteran's claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA examination, by an ear, nose, and throat (ENT) physician or an audiologist, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause may result in denial of the claim for service connection for tinnitus (as the original claim will be adjudicated 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. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination, sent to him by the pertinent medical facility. Prior to arranging further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. The Veteran has stated that he has not received any treatment for tinnitus. However, he has indicated that he has been involved in regular, ongoing treatment for PTSD at the VA Community Based Outpatient Clinic (CBOC) in Houma, Louisiana since July 2005, and that it was during that treatment that he was first informed of an association between tinnitus and PTSD. Presently, the only VA treatment reports contained in the paper claims file are dated from July 1, 2005 to August 25, 2005. In addition, it appears from materials in the electronic claims file that additional VA treatment records, dated from May 28, 2009 to September 2, 2010 have been obtained and are likely associated with a temporary claims folder, currently at the RO. However, there is no indication, whether in Virtual VA or otherwise, that relevant records have been procured for the periods between August 25, 2005 and May 28, 2009, and after September 2, 2010. 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. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Houma VA CBOC all outstanding records of VA evaluation and/or treatment of the Veteran dated between August 25, 2005 and May 28, 2009, and after September 2, 2010, and should associate any existing temporary folders with the current claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also inform the Veteran of the information and evidence necessary to substantiate a claim for secondary service connection, inasmuch as, as noted above, he has advanced the theory that his tinnitus may be due to his service-connected PTSD. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). Furthermore, while the matter is on remand, the RO should take action to verify the Veteran's service in Vietnam. Although the Veteran has asserted that he had service in Vietnam, and the available records show that he received the Vietnam Service Medal (VSM), the VSM is awarded for service in areas outside of Vietnam, and his service in-country has not been formally verified. Inasmuch as he is claiming in-service exposure to herbicides-and there is now a legal presumption of herbicide exposure for veterans who served in Vietnam during the Vietnam era-verification of the Veteran's purported Vietnam surface should be accomplished. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. As indicated, the RO's adjudication of the claim must include consideration of all theories advanced by the Veteran, including the question of whether service connection for tinnitus can be established as due to exposure to herbicides, or as secondary to service-connected PTSD. Accordingly, this matter is hereby REMANDED for the following action: 1. Associate with the claims file any existing temporary folders. 2. Contact the service department for purposes of verifying the Veteran's service in Vietnam. All records/responses received should be associated with the claims file. 3. Obtain from the Houma VA CBOC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated between August 25, 2005 and May 28, 2009, and after September 2, 2010. If not already contained in an existing temporary folder, also obtain from the Houma VA CBOC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated from May 28, 2009 to September 2, 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 4. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. In the letter, inform the Veteran of the information and evidence necessary to substantiate a claim for secondary service connection, inasmuch as he has advanced the theory that his tinnitus may be due to his service-connected PTSD. Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an ENT physician or an audiologist, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All clinical findings should be reported in detail. The examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's tinnitus had its onset in or is otherwise medically related to service, to particularly include in-service noise exposure, and/or exposure to herbicides, as alleged. The examiner should also offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's tinnitus was caused or is aggravated (i.e., permanently worsened beyond natural progression) by his service-connected PTSD. In rendering each requested opinion, the examiner should specifically consider the in- and post-service medical records, as well as the Veteran's assertions regarding noise and herbicide exposure both during and after service. The examiner should also discuss the significance, if any, of the article, The Association Between Tinnitus and Posttraumatic Stress Disorder, American Journal of Audiology, Vol. 16, pp. 107-117 (Dec. 2007); an abstract of which has been associated with the claims file. If consultation with any other examiner(s) (such as a psychologist or psychiatrist) is necessary, that should be accomplished. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 8. To help avoid future remand, 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). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of the claim) and legal authority (to include that governing herbicide exposure and secondary service connection theories of entitlement). 10. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to, and discussion of, all additional legal authority considered-in particular, that governing herbicides exposure and secondary service connection claims-along with 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 purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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 appeal. 38 C.F.R. § 20.1100(b) (2012).