Citation Nr: 1333201 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-14 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of a left ankle injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military service from July 1968 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A hearing before the undersigned Veterans Law Judge was held at the RO in November 2011. A transcript of the hearing has been prepared and associated with the claims file. 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 on his part. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Veteran claims that his tinnitus and residuals of a left ankle injury are related to his military service. Regarding his claim for tinnitus, in November 2011, the Veteran testified before the undersigned Veterans Law Judge that his tinnitus started while he was in the military. He was a safety seat driver around tanks and APCs. After service, he was employed in farming and construction. The Veteran testified that he was provided with good hearing protection while employed. The Veteran further stated that he had tinnitus prior to his construction job. The Veteran was afforded a VA audiological examination in March 2010 where based on a physical examination, the in-service treatment records, and medical literature, a negative nexus opinion was given. The VA examiner attributed the Veteran's tinnitus in part to his post-service employment. However, the Board finds that clarification to the March 2010 VA examination is needed. The Veteran's lay statements that he experienced tinnitus since service and prior to his civilian employment was not considered and addressed in the opinion. As such, an addendum opinion and rationale to the March 2010 VA examination is needed prior to further appellate review for purposes of obtaining a definitive opinion on whether the Veteran's tinnitus is related to his military service. Regarding the issue of entitlement to service connection for residuals of a left ankle injury, the Veteran also testified at the Board hearing that he injured his left ankle during service when he was closing a hatch on an APC and slipped on ice. He stated he was placed in a cast due to a broken bone and his ankle had been weak ever since the injury. He stated he sprains his ankle approximately 2 to 3 times a year. According to the in-service treatment records, on March 9, 1970, the Veteran injured his left ankle when he slipped off a tank. An x-ray taken at the time of treatment revealed soft tissue swelling but no fracture was seen. The Veteran was instructed to go on bed rest with elevation of the ankle and it was also noted that a cast would be placed in a couple of days when the swelling reduces. A March 10, 1970, note indicated that the Veteran will be given a walking boot case and was placed on duty limitations for 10 days. At separation, the Veteran reported that he bruised his ankle but no abnormalities of the left ankle were found on examination. The Veteran was afforded a VA examination in March 2011 where upon physical examination the Veteran was diagnosed with degenerative joint disease of the left ankle with minimal loss of function/pending an x-ray report. The Veteran underwent an x-ray in April 2010 where it revealed there was "[d]eformity of the posterior malleolus of the left tibia and mild degenerative change of the left ankle joint presumably due to old posttraumatic change." The VA examiner opined in March 2011 that the left ankle condition with degenerative changes was less likely related to the soft tissue injury to his left ankle in March 1970. The VA examiner also cited to the in-service treatment record reflecting the absence of a fracture at the time of the injury. The VA examiner opined that the Veteran's current left ankle disability was more likely due to normal wear and tear process of his age and occupation. The Board finds that clarification is necessary as the VA examiner's opinion did not address the Veteran's lay statements of continuity of symptomatology or the April 2010 x-ray findings of deformity of the posterior malleolus of the left tibia and mild degenerative change of the left ankle joint presumably due to old posttraumatic change. As such, an addendum opinion and rationale to the March 2011 VA examination is needed prior to further appellate review for purposes of obtaining a definitive opinion on whether the Veteran's left ankle disability is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from the same VA examiner who conducted the March 2010 audiology examination. With respect to the Veteran's tinnitus, the examiner should clearly opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service. The examiner is asked to specifically address the Veteran's lay statements that his tinnitus started while he was in service and prior to any civilian employment. If the March 2010 VA examiner is unavailable, or another examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by an appropriate examiner, to obtain an opinion responsive to the question and comments noted above. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. Furthermore, a complete rationale, including a discussion of the Veteran's documented medical history (private and VA) and lay assertions, should be given for all opinions and conclusions expressed. If an opinion cannot be medically determined without resorting to mere speculation, this should be thoroughly explained in the report. 2. Request an addendum opinion from the same VA examiner who conducted the March 2011 joints examination. With respect to the Veteran's left ankle disability, the examiner should clearly opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service. The examiner is asked to specifically address the Veteran's lay statements of continuity of symptomatology since service and the April 2010 x-ray finding of a deformity of the posterior malleolus of the left tibia and mild degenerative change of the left ankle joint presumably due to old posttraumatic change. If the March 2011 VA examiner is unavailable, or another examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by an appropriate examination, to obtain an opinion responsive to the question and comments noted above. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. Furthermore, a complete rationale, including a discussion of the Veteran's documented medical history (private and VA) and lay assertions, should be given for all opinions and conclusions expressed. If an opinion cannot be medically determined without resorting to mere speculation, this should be thoroughly explained in the report. 3. Upon completion of the foregoing, review the examiners' reports to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 4. After completion of the above, the claims should be readjudicated, with consideration given to any new evidence and all appropriate laws and regulations. If the claims are not granted, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). _________________________________________________ BARBARA B. COPELAND 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).