Citation Nr: 1332261 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-26 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from August 1986 until September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In pertinent part, the RO denied service connection for tinnitus and a skin condition. The Board notes that the Veteran also appealed a claim for service connection for a lumbar spine disorder from the June 2008 rating decision. That matter, however, is not before the Board as the RO granted service connection for such disability in an October 2009 rating decision, thus awarding the Veteran the full benefit he sought on appeal. In his June 2009 substantive appeal (VA Form 9), the Veteran did not indicate whether he desired a hearing before the Board. As such, the RO sent him a clarification letter in July 2009. Thereafter, in August 2009, the Veteran indicated that he did not want a Board hearing. However, a September 2009 Report of Contact reflects that the Veteran elected to have a Board hearing at the RO. Thereafter, in August 2011, he indicated that he wished to withdraw his request for a Board hearing and requested that his case before to the Board. 38 C.F.R. § 20.704(e) (2012). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than a copy of the September 2013 informal hearing presentation. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In regard to the claim for service connection for tinnitus, the Veteran contends that his noise exposure while working as a tank crewmember caused such disorder. He was provided with a VA examination in April 2008. At such time, the VA examiner determined that he would be unable to provide a medical opinion without resort to mere speculation, explaining that he could not form an opinion regarding etiology since the Veteran did not know when tinnitus started or if it is in one or both ears. Thereafter, in his June 2009 substantive appeal, the Veteran provided additional information regarding his tinnitus, to include a discussion of the onset of tinnitus. Therefore, as the April 2008 VA examiner's opinion is speculative and additional, relevant information has since been provided, the Board finds that the agency of original jurisdiction (AOJ) should obtain an addendum VA medical opinion from a different VA examiner to determine whether the Veteran's tinnitus is related to his in-service noise exposure. In regard to the claim for a skin disorder, the Veteran contends that while in service he was exposed to fuel and chemicals while working as a tank crewmember. He claims that he currently has itchy skin, which he attributes to that exposure. There is no medical evidence of record documenting any complaints, treatment, or diagnosis of a skin disorder in service or since service. Nevertheless, the Veteran is competent to report the nature, frequency, and severity of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The record does not indicate that the Veteran has been afforded a VA examination in regard to his claimed skin disorder. In this regard, the Board notes that the Veteran failed to report to a June 2008 skin examination. However, in light of his allegation of in-service exposure to fuel and chemicals, which is consistent with his military occupational specialty, and his current complaints regarding itchy skin, the Board finds that he should be provided with a VA examination so as to determine the nature and etiology of such disorder. As the Veteran has failed to report to a previously scheduled VA examination, he should be advised that it is his responsibility to report for a scheduled examination and to cooperate in the development of the claim. Additionally, he should be informed that he consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. Finally, if the Veteran fails to report for any examination ordered as a consequence of this remand, the letter notifying him of the scheduled examination should be associated with the claims file. Additionally, as the Veteran's claims are being remanded, the AOJ should ensure that the record before the examiners is complete and give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization. Accordingly, the case is REMANDED for the following: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for tinnitus and/or skin disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development has been accomplished, the Veteran's entire claims file should be forwarded to a VA audiologist other than the April 2008 VA examiner for an addendum medical opinion regarding the claimed tinnitus. If the VA audiologist determines that a new VA examination is necessary prior to providing a medical opinion, such an examination should be obtained. Based on a review of the record, to include the April 2008 VA examination report and the Veteran's lay statements (to specifically include the June 2009 substantive appeal), the examiner should offer an opinion as to whether the Veteran's tinnitus is at least as likely as not related to his in-service noise exposure? The examiner should specifically consider the Veteran's in-service noise exposure while working as a tank crewman. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology and any other medical evidence of record. An explanation for any opinion offered should be provided. 3. After any additional medical records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his claimed skin disorder. Based on examination findings, including any necessary diagnostic studies, as well as a review of the claims file, including treatment records, the Veteran's statements, and a copy of this remand, the examiner should render opinions as to the following: (A) Identify all skin disorders found to be present. If no skin disorder is present, the examiner should reconcile such finding with the Veteran's complaints of itchy skin. (B) For any diagnosed skin disorder, the examiner should offer an opinion as to whether it is at least as likely as not that such skin disorder is related to his military service, to include his in-service exposure to fuel and chemicals while working as a tank crewman. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology and any other medical evidence of record. An explanation for any opinion offered should be provided. 4. The Veteran should be advised that it is his responsibility to report for a scheduled examination and to cooperate in the development of the claim. Additionally, he should be informed that he consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. Finally, if the Veteran fails to report for any examination ordered as a consequence of this remand, the letter notifying him of the scheduled examination should be associated with the claims file. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).