Citation Nr: 1341484 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 13-14 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from February 1957 to February 1965. He was also a member of the Air National Guard of South Dakota from February 1955 to February 1957. A claim for service connection for tinnitus was denied by the RO in April 2008. Although notified of the denial, the Veteran did not appeal. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2012 rating decision in which the RO, inter alia, declined to reopen the Veteran's claim for service connection for tinnitus. In August 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In July 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013). Later that month, the Board reopened the Veteran's claim for service connection for tinnitus and remanded the claim, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence. After taking further action, the AMC denied the claim (as reflected in an October 2013 supplemental SOC (SSOC) and returned the matter to the Board for further appellate consideration. The Board notes that this appeal is now being processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the July 2013 remand was not fully completed. In the July 2013 remand, the Board instructed the RO, inter alia, to arrange to have the Veteran examined for purposes of obtaining an opinion as to whether it was at least as likely as not that the Veteran's tinnitus had its onset in, or is otherwise medically related, to service, to particularly include in-service noise exposure. In rendering the requested opinion, the examiner was to specifically consider that, for service department examinations conducted on October 31, 1967 or earlier, VA ordinarily assumes that audiometric testing was conducted using ASA (American Standards Association) measurements; and that converting the results of testing at the time of the Veteran's separation from service in January 1965 to current ISO (International Standards Organization) measurements results in puretone thresholds of 15, 10, 15, 25, 15, and 20 decibels in the right ear, and 20, 15, 15, 20, 15, and 25 decibels in the left ear, at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. The examiner was also consider the United States Court of Appeals for Veterans Claims' (Court's) observation that thresholds above 20 decibels are indicative of at least some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A complete rationale for all opinions was to be provided. A review of the record reveals that the Veteran was afforded a new examination by a VA audiologist in September 2013, and that the audiologist concluded, in effect, that it was unlikely that the Veteran's tinnitus was related to service. However, in so doing, the examiner provided no discussion with respect to the converted (ISO) results of audiometric testing at the time of the Veteran's separation from service. Nor did the examiner discuss the Court's observations in Hensley, to the effect that auditory thresholds above 20 decibels are indicative of at least some degree of hearing loss. Accordingly, the RO should return the record on appeal to the September 2013 VA audiologist for a supplemental report discussing the matters raised in the Board's remand. Only if the September 2013 audiologist is unavailable, or a new examination is deemed necessary, should a new examination should be scheduled. If another examination is scheduled, the Veteran is hereby advised that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claim for service connection for tinnitus. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination, sent to him by the pertinent medical facility. Prior to obtaining further medical opinion in this matter, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. An attempt to obtained additional records of the Veteran's treatment at the VA Medical Center (VAMC) in Kansas City, Missouri and the VA Community Based Outpatient Clinic (CBOC) in Warrensburg, Missouri was last made on August 1, 2013; hence, more recent records from these facilities may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since August 1, 2013. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. As indicated, the RO's adjudication of this claim must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Kansas City VAMC and the Warrensburg VA CBOC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since August 1, 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire record on appeal, to include a complete copy of this REMAND, to the September 2013 VA audiologist for a supplemental report. Specifically, the examiner should consider and discuss that, for service department examinations conducted on October 31, 1967 or earlier, VA ordinarily assumes that audiometric testing was conducted using ASA (American Standards Association) measurements; and that converting the results of testing at the time of the Veteran's separation from service in January 1965 to current ISO measurements results in puretone thresholds of 15, 10, 15, 25, 15, and 20 decibels in the right ear, and 20, 15, 15, 20, 15, and 25 decibels in the left ear, at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. The examiner should also consider and discuss the Court's observation that thresholds above 20 decibels are indicative of at least some degree of hearing loss. See Hensley, supra. If the September 2013 VA audiologist is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, that fact should be documented in the claims file, and the RO should arrange for the Veteran to undergo another VA examination by an audiologist, or an ear, nose, and throat (ENT) physician, to obtain an opinion responsive to the comments noted above. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to, and discussion of, all additional legal authority considered, with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).