Citation Nr: 1323300 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-31 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board denied the appeal for service connection for bilateral hearing loss, and remanded the issues of service connection for tinnitus, peripheral neuropathy of the right upper extremity, and diabetic retinopathy for further development. In a rating decision dated in November 2012, the Appeals Management Center (AMC) granted the Veteran's appeals for service connection for peripheral neuropathy of the right upper extremity, and for diabetic retinopathy. The benefit sought, namely, service connection, having been granted, those claims are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Such file includes VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The remaining issue of service connection for tinnitus is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its January 2012 remand the Board directed that the claim for service connection for tinnitus be considered under a theory of secondary service connection as due to the Veteran's service-connected diabetes mellitus. In this regard, a May 2006 statement from the Veteran indicated his contention that his tinnitus was related to diabetes. In January 2012 the AMC issued VCAA notice regarding the requirements for substantiating a claim of service connection on a secondary basis. The Veteran did not respond to this letter. Upon readjudication, the AMC did not consider the Veteran's claim on a secondary basis, and merely reiterated the reason for denial on a direct basis. Such oversight must be remedied on remand. Review of the record shows that the Veteran received a marksman badge in service, indicating noise exposure. Moreover, in March 2006 he alleged that he suffers from ringing in his ears, although VA treatment records note he has repeatedly denied tinnitus. As the Veteran is competent to state that he has ringing in his ears, the Board will remand the claim to obtain a VA examination and opinion as to whether the Veteran's alleged tinnitus is related to service or service connected diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); 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). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for his claimed tinnitus. After securing any necessary release, request any records that are not duplicates of those contained in the claims file, including any relevant, ongoing treatment records since September 2012 from the Beckley VA Medical Center as well as treatment records dated after June 2008 from the Salem VA Medical Center. If any requested records are not available, the Veteran should be notified of such. 2. Then, afford the Veteran a VA ear examination with regard to his claim for service connection for tinnitus. The claims file must be reviewed by the examiner in conjunction with the examination. Following a review of the claims file and examination of the Veteran, the examiner is requested to opine as to whether the Veteran currently suffers from tinnitus and if so, whether it is at least as likely as not (50 percent probability or greater) that such is related to service, including noise exposure therein. If it is determined that tinnitus is not related to service, then the examiner is asked to opine as to whether tinnitus is caused by the service connected diabetes. If not caused by the service connected diabetes, then opine as to whether the Veteran's tinnitus is permanently worsened beyond normal progress (as opposed to a temporary exacerbation) by the service connected diabetes. If the examiner finds that the Veteran's claimed tinnitus is permanently worsened by his diabetes, he/she should attempt to quantify the degree of worsening. Please explain the reasoning for the opinions provided. If the examiner determines that a requested opinion cannot be provided without resorting to speculation, the examiner should explain why this is so (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completion of the above and any other development deemed necessary, re-adjudicate the appeal, to include consideration of the claim for tinnitus on a secondary basis. If the claim remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, and afford an adequate opportunity to respond. Thereafter, the claim should be returned to the Board, if in order. 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 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). _________________________________________________ K. A. BANFIELD 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).