Citation Nr: 1331524 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-03 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A November 2007 rating decision found that new and material evidence had not been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability. A March 2008 rating decision, in pertinent part, denied entitlement to service connection for tinnitus. The Veteran's January 2009 VA Form 9 included a request for a hearing. However, in September 2011, the Veteran withdrew that hearing request. This case was previously before the Board in May 2012. At that time the Board determined that relevant service records had been added to the file since the last final denial of service connection for a lumbar spine disability in September 1970. Therefore, the Board reconsidered the Veteran's claim on the merits and remanded the matter for a VA examination and opinion to address the etiology of the Veteran's back disability. An opinion was subsequently provided in January 2013. However, for the reasons stated below the opinion is inadequate. The Board denied service connection for tinnitus in May 2012. However, the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court); and pursuant to a Joint Motion for Partial Remand, the Court vacated the Board's decision as it pertained to the service connection claim for tinnitus and remanded the matter for action consistent with the terms of the Joint Motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Joint Motion noted that the opinion provided in February 2008 addressing the Veteran's tinnitus claim was insufficient as the examiner did not address the Veteran's reports of in-service noise exposure and that the onset of his tinnitus was over 30 years ago. Pursuant to the Court's remand, the Board is requesting a clarification opinion regarding the tinnitus claim. With respect to the service connection claim for the back disability, the medical opinion provided in January 2013 is insufficient. The rationale provided for why the Veteran's back disability was not related to service was that the Veteran had not sought any medical care for his back since the original injury in 1970. However, the record shows and the Board noted in it is previous remand that the Veteran was seen in 1982 for complaints of back spasms. A March 2009 private treatment record also notes the Veteran's reports of chronic low back pain for 40 years. He related his lifting injury in service and indicated that he had spasm pain in the low back area once in a while. As this medical evidence was not considered by the VA examiner in January 2013, the opinion provided is inadequate. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who performed the February 2008 VA examination and opinion addressing the Veteran's tinnitus. If this examiner is no longer available to complete an addendum to his opinion, the Veteran should be scheduled for a new VA examination by an audiologist to ascertain the origins or etiology of any present tinnitus. The claims folders are to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folders. After a review of the claims folders and an examination of the Veteran, the examiner should opine whether it is at least as likely as not that any current tinnitus was caused by any event, injury, or disease, or first manifested in his military service. In addressing this question please address the following: (a) the Veteran's exposure to acoustic trauma during combat service in Vietnam, including noise from rocket fire, explosions, and mortars without any ear protection, and (b) the Veteran's complaints of tinnitus that began 30 year ago. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The rationale for all opinions expressed in the examination above should be provided. If the examiner is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 2. Return the Veteran's claims file to the examiner who performed the April 2012 VA examination and opinion addressing the Veteran's back disability. If this examiner is no longer available to complete an addendum to his opinion, the Veteran should be scheduled for a new VA examination by an orthopedist to ascertain the origins or etiology of any present back disorder. The claims folders are to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folders. After a review of the claims folders and an examination of the Veteran, the examiner should opine whether it is at least as likely as not that any current back disorder was caused by any event, injury, or disease, or first manifested in his military service. In addressing this question please address the following: (a) the Veteran's medical history of having a lifting injury in service in 1970 with a diagnosis of back strain, and his having combat experience in Vietnam (b) the Veteran's complaints of chronic low back pain for the past 40 years, as well as intermittent spasms, and (c) the May 1982 private treatment record noting muscle spasms in the lumbar spine. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The rationale for all opinions expressed in the examination above should be provided. If the examiner is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence submitted since the June 2011 supplemental statement of the case addressing the back and tinnitus, and the last April 2013 supplemental statement of the case, addressing the back. If either benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. PARAKKAL 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).