Citation Nr: 1336100 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-21 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional VA clinical records dated through October 2012, which were considered in the October 2012 supplemental statement of the case. 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, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). At his June 2013 Board hearing, the Veteran testified that he was treated for ringing in his ears at the VA Medical Center in Cincinnati, Ohio, in 1979 and a few times during the 1980's. The records pertaining to such treatment have not been obtained; rather, the only VA treatment records from such facility of record are dated from January 1996 to October 2012. As the earlier records demonstrating treatment for the Veteran's claimed condition relatively shortly after service would clearly be relevant to the claim, the Board finds that in order to fulfill the duty to assist, the case must be remanded to obtain these records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The Board further observes that the Veteran was afforded a VA examination in October 2012. At such time, the examiner determined that the Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure as the onset was in the early 1980's (years after military discharge) and the nature of the tinnitus was intermittent. The examiner further indicated that there are many factors that can contribute to intermittent tinnitus, i.e., certain medications, fatigue, stress, nicotine, impacted ceruem, caffeine, etc. However, at his June 2013 Board hearing, the Veteran testified that such opinion was based on an inaccurate factual premise. Specifically, the "mistaken" comments from the Veteran at the examination that his tinnitus began in the early 1980's and had been "intermittent," when, in fact, the Veteran contends that the symptoms began during or proximate to service, i.e., in the 1970's, and have been continuous since that time, but had worsened in the 1980's with intermittent periods of severe symptoms. Therefore, the Board concludes that, in order to ensure that duty to assist has been fulfilled, an addendum etiological opinion that considers the earlier VA treatment records as well as the Veteran's testimony at the June 2013 Board hearing should be obtained. Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that medical opinions based on an inaccurate factual premise have no probative value); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. 3.159 § (c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant records of the Veteran's treatment at the VA Medical Center in Cincinnati, Ohio, from 1979 to January 1996. All reasonable attempts should be made to obtain any identified 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 all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's October 2012 tinnitus examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the October 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of any newly received VA treatment records and the Veteran's testimony at the June 2013 Board hearing, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's tinnitus is related to his in-service noise exposure, to include his military duties that involved exposure to automobile engine noise and aircraft noise? In rendering such opinion, the examiner should specifically document consideration of the Veteran's complaints of continuous tinnitus, with varying periods of severity, from service, or shortly thereafter, to the present time. The opinion should be supported by a clear rationale. 3. 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his attorney 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 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 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).