Citation Nr: 1432829 Decision Date: 07/23/14 Archive Date: 07/29/14 DOCKET NO. 09-45 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from October 1999 to March 2000 in the United States Marine Corps. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). A transcript of that hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system reveals a June 2014 representative brief that has been reviewed by the Board, as well as VA treatment records not pertinent to the appeal. A review of the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, the Veteran must be scheduled for a VA examination by an appropriate specialist to secure an opinion as to the etiology of any current tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). This is because at a previous June 2008 VA audiology examination, the VA audiologist recommended that a "medical evaluation" was required to determine the etiology of the Veteran's reported tinnitus. Where an examiner states that additional records and/or diagnostic studies could be helpful in providing an opinion, a remand for further development may be warranted. See e.g., Green v. Derwinski, 1 Vet. App. 121, 123-24 (1991). VA's failure to conduct further evaluations and studies as recommended by the VA's own examiner would constitute a breach of its statutory duty to assist the Veteran. Hyder v. Derwinski, 1 Vet. App. 221, 224-225 (1991). Second, remand is required to obtain a secondary service connection opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (noting that, generally, a medical opinion should address the appropriate theories of entitlement). In the June 2013 brief the Veteran's representative asserted that her tinnitus may also be secondary to medication taken for her service-connected orthopedic disabilities, including a left hip disability with sciatica and a lumbar spine disability. As such, the examiner should address this theory on remand. Third, the AOJ should attempt to secure any outstanding VA treatment records from the VA healthcare system in Indianapolis, Indiana dated after April 2013. Accordingly, the case is REMANDED for the following action: 1. Request VA medical records from the Indianapolis, Indiana VA healthcare system dated from April 2013 to the present. All attempts to secure these records, and any response received, should be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. Provide the Veteran with proper notice regarding secondary service connection. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA Ear, Nose, and Throat (ENT) examination by an appropriate clinician to determine the etiology of any tinnitus the Veteran has. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished. The examination should include any diagnostic testing or evaluation deemed necessary, including laboratory tests. The Veteran must be interviewed. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a) Is it at least as likely as not (i.e., 50 percent or more probable) that tinnitus is related to acoustic trauma during the Veteran's period of active service from October 1999 to March 2000? The examiner must address the Veteran's reports that she first noticed tinnitus after exposure to loud noise at the rifle range in boot camp and exposure to loud generators and flight line noise while cleaning an airfield. The Veteran states that she reported the tinnitus to her military drill instructors but was told there was nothing that could be done. Upon enlistment into service in July 1999, the Veteran reported a history of having tubes in her ears as a child. In a service treatment record dated in October 1999, the Veteran denied ringing in the ears. A January 2000 service treatment record noted left ear pain for a day and sinus pressure. Other service treatment records document upper respiratory infections in December 1999 and January 2000. There was no evidence of hearing loss by the standards of 38 C.F.R. § 3.385 during service. No discharge examination was conducted. Post-service, private treatment records dated from 2001 to 2003 reveal treatment for upper respiratory infections, sinus congestion, ear pain and pressure, vertigo, nausea, dizziness, ear infections, and persistent complaints of ears "popping" and "cracking." In February 2003 acute sinusitis was diagnosed. In March 2003 a private treatment report assessed chronic sinusitis, left ear otitis media, and Eustachian tube dysfunction. VA otolaryngology consults dated from April 2009 to October 2009 record sinus complaints of sore throat, ears popping, and pressure changes. A June 2008 VA audiology examiner opined that since there was no indication of current noise-induced hearing loss to which tinnitus could be associated, it was less likely as not the Veteran's reported tinnitus was due to acoustic trauma from boot camp. The VA examiner recommended that a "medical evaluation" was required to determine the etiology of the Veteran's reported tinnitus. The examiner must consider and comment upon a June 2014 article from the Journal of Neuroscience submitted by the Veteran. This article discussed that the absence of any detectable loss of cochlear function in certain individuals has been taken to indicate that tinnitus "can" arise without any evidence of peripheral hearing loss. (b) Is it at least as likely as not that the Veteran's tinnitus was caused or aggravated by her service-connected disabilities, specifically, the medications taken for her left hip and lumbar spine disabilities. 4. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Thereafter, the consider all of the evidence of record and readjudicate the service connection issue for tinnitus. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and her representative an opportunity to respond. 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. 2013). _________________________________________________ K. MILLIKAN 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).