Citation Nr: 1339728 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-30 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1963 to September 1967, to include service in Vietnam from May 1966 to June 1967. He also had service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 does not reveal any additional documents pertinent to the present appeal. 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). First, the Board notes that the Veteran reported working as a pilot for the Army National Guard from 1969 to 1992. The applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or for injury incurred or aggravated while performing inactive duty training (INACDUTRA). Although copies of the Veteran's service treatment records from his period of service in the Reserves prior to his entrance into active duty are contained in the claims file, his complete service treatment records from his subsequent service in the Army National Guard have not been associated with the claims file. On remand, the agency of original jurisdiction (AOJ) should attempt to verify all periods of ACDUTRA and INACDUTRA and to obtain his complete service treatment records from his National Guard service. If the Veteran's periods of ACDUTRA and INACDUTRA are unverifiable, or his treatment records are unavailable, such a fact should be documented, in writing, in the record. In addition, the Veteran contends that he suffers from tinnitus as a result of his exposure to loud noise during service. The Board notes that the Veteran's military occupational specialty (MOS) of pilot is listed in the Department of Defense's Duty MOS Noise Exposure Listing. The Veteran has also generally asserted that his tinnitus was related to his service-connected bilateral hearing loss. In an April 2011 examination report and a July 2012 addendum, the VA examiner opined that the Veteran's tinnitus was not caused by or a result of his service or his service-connected hearing loss. A rationale was provided in support of such opinion. However, the examiner also indicated in the April 2011 VA examination report that the Veteran's tinnitus was "as likely as not a symptom associated with the hearing loss" and the July 2012 addendum did not address this apparent internal inconsistency. Moreover, the examiner did not address whether the Veteran's bilateral hearing loss aggravated his tinnitus. Finally, subsequent to such examination and opinions, the Veteran's representative has argued that the Merck Manual indicates that high frequency tinnitus usually accompanies hearing loss. Therefore, the Board finds that an addendum opinion is necessary to decide the claim. Finally, it does not appear that the Veteran has been afforded proper Veterans Claims Assistance Act of 2000 (VCAA) notice with respect to the secondary aspect of his service connection claim. Therefore, such should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for tinnitus as secondary to his service-connected bilateral hearing loss. 2. Contact any appropriate source, to include the National Personnel Records Center, the Department of the Army, and/or the Veteran's Army National Guard Unit, to obtain all service treatment records and to verify the Veteran's periods of ACDUTRA and INACDUTRA. In making these requests, use the Veteran's complete last name, as listed on his Form DD 214. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Continue efforts to obtain records and verify service until either the evidence/information is received, or until specific information that the evidence/information sought does not exist or that further efforts to obtain it/them would be futile is obtained. All records and/or responses received should be associated with the claims file. 2. After obtaining any additional records, return the claims file, to include a copy of this remand, to the April 2011 VA examiner for an addendum opinion as to the nature and etiology of the Veteran's tinnitus. If the examiner who drafted the April 2011 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another clinical examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following questions: a) Is at least as likely as not that the Veteran's tinnitus had its onset in or was otherwise incurred in service, to include any period of active duty, ACDUTRA, or INACDUTRA. In this regard, the examiner must consider the fact that the Veteran's MOS of pilot is among those listed in the Department of Defense Duty MOS Noise Exposure Listing. b) Is it at least as likely as not that the Veteran's diagnosed tinnitus was caused OR aggravated by his service-connected bilateral hearing loss? In this regard, the examiner must reconcile the conflicting findings from the April 2011 VA examination in which the examiner indicated that tinnitus was a symptom of hearing loss and the ultimate conclusions from the April 2011 and July 2012 examiners that tinnitus is not caused or a result of hearing loss. The examiner should also address the Veteran's representative's argument that the Merck Manual indicates that high frequency tinnitus usually accompanies hearing loss. In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the onset and continuity of symptomology since service. The examiner should also discuss the rationale for the opinion. 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 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). The 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) (2013).