Citation Nr: 1307675 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-00 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana. In a January 2008 decision, the Board denied the Veteran's claim for service connection for tinnitus. The Veteran appealed the Board's January 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2008, the Court vacated the Board's January 2008 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The Board remanded the case in February 2010 and the case has returned to the Board for further review. In October 2012, the Veteran's representative, a private attorney, withdrew representation from the Veteran's case. See 38 C.F.R. § 20.608. In November 2012, the Board sent the representative a letter regarding the requirements for withdrawal. In December 2012, the attorney submitted a motion to withdraw representation. The attorney stated that the good cause for withdrawal was that the Veteran appointed a new representative. The attorney noted that the withdrawal was discussed with the Veteran and a copy appears to have been provided to the Office of the Senior Deputy Vice Chairman and the Director, Office of Management, Planning and Analysis. The record shows that the Veteran submitted a VA Form 21-22 in October 2012 and appointed the American Legion as his representative. Therefore, the Board finds that good cause for withdrawal has been shown. Id. In February 2013, a representative from the American Legion prepared a written brief presentation, which is associated with the claims file. The American Legion is properly listed as the Veteran's representation on the title page of this decision. 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 In February 2010, the Board remanded the Veteran's claim to provide a notice letter, obtain identified VA treatment records from the Marion, Illinois VA Medical Center (VAMC) and records from the Evansville, Illinois VA outpatient clinic, contact the Veteran and ask that he identify the names and addresses of all medical providers of treatment for injuries he sustained in 1997 and to obtain any records identified, and to obtain a medical opinion regarding the etiology of the Veteran's claimed tinnitus. The record shows that the Veteran was sent an adequate notification letter in March 2010, which included VA Forms 21-4142 for any medical treatment received including injuries sustained in 1997. In response, private medical records from 1997 were submitted and it was noted that all medical records were submitted. In addition, a medical opinion was provided in June 2010. The examiner reviewed the claims file, considered the in-service acoustic trauma and the Veteran's post-service acoustic trauma, and provided a negative nexus opinion with supporting rationale. Therefore, the Board finds that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the above, the Board finds that these February 2010 remand directives were completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, with respect to the request for VA treatment records, the Board finds that the Veteran's claim must be remanded. Documentation in the claims file indicates that records dated from December 2004 to March 2010 were requested with respect to the terms "hearing loss," "tinnitus," and "audio." It was noted that the request for records was negative. A copy of a problems list from the Marion, Illinois VAMC was included in the claims file, which did not list hearing loss or tinnitus as active problems. However, in the February 2013 written brief presentation, the Veteran's representative noted that, during a telephone conversation, the Veteran stated that he has in fact received VA evaluation/treatment relevant to his tinnitus claim, and that these records should be given due consideration. The Board notes that it has been almost two years since VA treatment records have been requested. Therefore, in order to comply with the Board's remand and the Veteran's recent contentions regarding VA evaluation/treatment, VA must obtain records from the Marion, Illinois VAMC to include the Evansville, Illinois VA outpatient clinic records. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Furthermore, during the February 2009 VA audiological examination, the Veteran reported that he was receiving disability benefits from the Social Security Administration (SSA). In a notice of award letter from the SSA, it was noted that the Veteran became disabled on March 26, 2002. There is no reference as to the basis for the award. There are no SSA records associated with the claims file and there is no indication that VA has attempted to obtain any such records. While SSA records are not controlling for VA determinations, when VA is put on notice of the existence of SSA records, and they may be pertinent to a VA claim, VA must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Therefore, the RO/AMC must attempt to obtain the Veteran's complete SSA records. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all records of VA audiological treatment, to include for tinnitus since service, to include records from the Marion, Illinois VAMC and VA outpatient clinic records from Evansville, Illinois. If requests for any treatment records are not successful, the RO/AMC should inform the Veteran and his representative of this so that they will have an opportunity to obtain and submit the records themselves. 2. Contact the SSA and request a copy of all materials, to include medical records, related to the Veteran's claim for SSA disability benefits. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file and notify the Veteran. 3. If and only if additional records are received regarding tinnitus, the RO/AMC should obtain a supplemental medical opinion from the June 2010 VA examiner. If the June 2010 VA examiner is not available, request a medical opinion from another appropriate VA examiner. The examiner should consider the entire claims file, the Veteran's exposure to acoustic trauma in service and the Veteran's post-service exposure to acoustic trauma as a ship fitter and door maker. The examiner must consider the conflicting reported history of onset of the tinnitus on VA examinations in October 2003 and October 2006. The examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's tinnitus had its onset in active service or is otherwise causally related to active service. The examiner should provide a complete rationale for any opinion reached. 4. Thereafter, readjudicate the issue of entitlement to service connection for tinnitus. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appropriate period to respond, prior to returning the matter to the Board. The appellant 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 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). _________________________________________________ U.R. POWELL 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).