Citation Nr: 18148975 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-11 339A DATE: November 8, 2018 REMANDED The claim of entitlement to service connection for left ear tinnitus is remanded. REASONS FOR REMAND The appellant served on continuous active duty for training (ACDUTRA) from September 1976 to May 1977. He also had additional periods of ACDUTRA from August 1987 to July 1990, and inactive duty for training (INACDTURA), to include from April 1987 through July 1991. This appeal to the Board of Veterans Appeals (Board) arose from a May 2009 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, denied service connection for left ear tinnitus. The appellant disagreed with the RO’s decision, and this appeal ensued. The appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). The record reflects that the appellant withdrew a request for a hearing before a Decision Review Officer (DRO) in March 2010. Also, he failed to report for a scheduled Board hearing in October 2010. In August 2012, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further development. In a June 2014 decision, the Board denied service connection for several claimed disabilities, to include left ear tinnitus. The appellant appealed the Board’s June 2014 denial of service connection for left ear tinnitus to the United States Court of Appeals for Veterans Claims (Court). By Order dated in January 2015, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by representatives for both parties, vacating the Board’s June 2014 decision with respect to the denial of the tinnitus claim, and remanding the matter to the Board for further proceedings consistent with the Joint Motion. Pursuant to the Joint Motion, in July 2015, the Board remanded the service connection claim for tinnitus to the AOJ again to fulfill the directives of the Joint Motion. The Board subsequently denied the service connection claim again in December 2015. The appellant again appealed the Board’s decision to the Court, and in October 2016, the Court granted a January 2016 Joint, vacating the Board’s denial of service connection for left ear tinnitus, and remanding the matter to the Board for further proceedings consistent with the Joint Motion. The Board again denied the appellant’s service connection claim for left ear tinnitus in January 2017, and the appellant again appealed the Board’s decision to the Court. In April 2018, the Court granted a March 2018 Joint Motion filed by representatives for both parties, vacating the Board’s January 2017 denial, and remanding the matter to the Board for further action consistent with the terms of the Joint Motion. In light of points raised in the March 2018 Joint Motion, and the Board’s review of the claims file, further AOJ action on the service connection claim for left ear tinnitus is warranted. The appellant’s essential assertion is that he developed left ear tinnitus as a result of a grenade explosion during his basic training, falling within his period of continuous ACDUTRA from September 1976 to May 1977. In the March 2018 Joint Motion, the parties found fault with the Board’s lack of reconciliation of its findings that the appellant’s reported hospitalization following the grenade explosion was not corroborated be evidence of record with findings in an August 2005 VA examination report, where the examiner opined that it was more likely than not that the appellant suffered a grenade injury during his military service. The parties additionally found fault with the Board’s reliance on an August 2015 VA examination report to the extent that the August 2015 VA examiner did not address whether a “witnessed in-service grenade explosion” could have caused the appellant’s reported left ear tinnitus. To the extent that the August 2005 VA examiner indicated that it was his opinion that the appellant’s reported grenade injury occurred, and a VA examiner has not specifically opined as to whether such a grenade explosion could have caused the appellant’s current tinnitus, and to the extent that the August 2015 VA examiner appeared to incorrectly insinuate that there was no evidence of tinnitus of record prior to a 2010 audiology examination, the Board finds that remand is warranted to obtain an addendum opinion from the examiner addressing all evidence of record pertaining to the appellant’s reported grenade incident and his reported left ear injury. If the same examiner is not available, the AOJ should arrange for another appropriate physician to provide an addendum opinion, based on file review (if possible). The AOJ should only arrange for the appellant to undergo further VA examination, by an appropriate physician, if one is deemed necessary by the individual designated to provide the addendum opinion. Additionally, the Board notes that prior Board and AOJ decisions have indicated that the appellant’s service treatment records (STRs) pertaining to his period of continuous ACDUTRA, from September 1976 to May 1977, were associated with the claims file (including specifically his electronic claims file). The August 2015 VA examiner also indicated that he reviewed the STRs in forming his opinion. After careful review of the appellant’s electronic claims file, however, the Board is not presently able to locate the STRs. Thus, prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to specifically include a complete copy of the appellant’s STRs for the period from September 1976 to May 1977. The AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. This matter is hereby REMANDED for the following action: 1. Undertake appropriate action to ensure that a complete copy of the appellant’s STRs for the period from September 1976 to May 1977, is associated with the claims file. If necessary, request the STRs from the appropriate repository(ies), following the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the appellant and his representative a letter requesting that the appellant provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the appellant furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the appellant responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant 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 have been associated with the claims file, arrange to obtain from the August 2015 VA examiner an addendum opinion addressing the etiology of the appellant’s claimed left ear tinnitus. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (if possible). Only arrange for the appellant to undergo examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the appellant’s documented medical history and assertions. After review of the appellant’s documented medical history and lay assertions, and after any further examination is conducted, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the appellant’s reported left ear tinnitus had its onset during service, or is otherwise medically-related to service, to specifically include as a result of his reported grenade injury during his basic training. For purposes of rendering the requested opinion, the examiner should accept that the appellant’s in-service grenade injury occurred, as reported. Also, in rendering the requested opinion, the examiner must consider and discuss all pertinent medical evidence and lay assertions, to include competent assertions as to the onset and continuity of symptoms of tinnitus, and evidence showing that the appellant has reported having in-service left ear injury and resulting left ear hearing loss due to the grenade incident since at least August 2005. Complete, clearly stated rationale for the conclusions reached must be provided. 5. 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, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel