Citation Nr: 1343230 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 13-02 266 ) 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 an initial compensable disability rating for left ear hearing loss. 3. Entitlement to an initial compensable disability rating for traumatic brain injury (TBI) with residual headaches. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from January 2001 to June 2001 and from February 2003 to January 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed both the Veteran's physical claims file and "Virtual VA" to ensure that the complete record is considered. 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. REMAND Further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 C.F.R. § 3.159 (2013). Review of the record suggests that the medical evidence is incomplete. In his January 2013 VA Form 9 (substantive appeal), the Veteran recalled that he underwent a "full physical exam for employment at the Winter Garden Police Department" in the Fall of 2009 in Orlando, Florida. This examination report is not associated with the record (including in Virtual VA). Complete records of all medical evaluations or treatment during the relevant period are pertinent, and may be critical, evidence. Hence, a copy of the Veteran's physical examination for employment at the Winter Garden Police Department completed in the Fall of 2009 must be secured. See 38 C.F.R. § 3.159. With respect to the increased rating claims, the Veteran reports experiencing continued headaches and difficulty hearing specific sounds with a lot of surrounding noise. As the Veteran's statements indicate that his headaches and left ear hearing loss may have worsened since his prior examinations conducted over three years ago (in May 2010 for TBI and July 2010 for hearing loss), the Board will remand the claims to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his headaches and hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (an examination was necessary where a Veteran alleged worsening, and the most recent VA examination was two years prior). Notably, the Veteran's TBI with residual headaches is currently evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8045 for residuals of TBI. He reports that his disability is primarily manifested by headaches. Headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Code 8100, pertaining to migraine headaches based on the frequency of "characteristic prostrating attacks." On examination, the Veteran will have an opportunity to describe the nature and severity of this headaches, including the frequency of prostrating attacks. In his March 2011 notice of disagrement, the Veteran stated that he had ringing in his ears following the IED (improvised explosive device) explosions and suggested that his symptoms have continued to the present. This statement constitutes a notice of disagreement with the July 2010 denial of service connection for tinnitus. Under Manlincon v. West, 12 Vet. App. 238 (1999), the Board must instruct the RO that this issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. It is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran timely files a substantive appeal after issuance of a SOC. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all providers of treatment and/or evaluation he has received for his claimed disabilities and to provide the authorizations necessary for VA to obtain all outstanding records of any such private evaluations and treatment (to specifically include a release for his physical examination for employment at the Winter Garden Police Department completed in the Fall of 2009). Secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. Issue an appropriate SOC that addresses the Veteran's claim of entitlement to service connection for tinnitus. The Veteran should be advised that this matter will be before the Board only if he timely perfects an appeal by submitting a substantive appeal. If he perfects an appeal in the matter, it should be returned to the Board for appellate consideration. 3. After completion of the foregoing, schedule the Veteran for a VA audiological examination to determine the severity of his service-connected left ear hearing loss. The claims file and any pertinent records must be made available to the examiner for review. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram and Maryland CNC test, must be accomplished. The VA examiner must also describe the functional effects of the Veteran's service-connected left ear hearing loss on his occupational functioning and daily activities. The examiner should explain the rationale for all opinions in detail, citing to supporting factual data, as indicated. 4. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and extent of any current manifestations of his service-connected TBI with headaches. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, a copy of this remand (to include the report of VA examination dated in May 2010) and any other pertinent records should be made available for review in connection with the examination. The examiner should address the severity of the Veteran's service-connected disability consistent with the criteria for evaluating residuals of TBI under Code 8045 and headaches under Code 8100. The examiner should specifically identify all symptoms and impairment associated with the Veteran's headaches, noting their frequency and severity; whether or not they are prostrating and/or incapacitating, the treatment they require, and their impact on occupational and everyday functioning. The examiner should explain the rationale for all opinions in detail, citing to supporting factual data, as indicated. 5. Following completion of all indicated development, the RO should review the record and readjudicate the claims for initial compensable evaluations for TBI with headaches and left ear hearing loss. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ M. E. LARKIN 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).