Citation Nr: 20003546 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 14-37 334 DATE: January 15, 2020 REMANDED Service connection for bilateral tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1970 to April 1971 with additional service in the Air National Guard. The matter on appeal comes before the Board on appeal from a February 2012 rating decision. In April 2018, the Board denied the Veteran’s claim for service connection for tinnitus and for hearing loss and remanded eight other service connection claims. Initially, the Board notes that the Veteran was offered an opportunity to participate in the Rapid Appeals Modernization Program (RAMP) for the remanded issues. He opted into RAMP and those remanded issues are now being separately considered under the new legal framework of the Appeals Modernization Act (AMA). Those claims will not be considered here. The Veteran’s claims for service connection for tinnitus and hearing loss were not included in the RAMP option, because both claims had been finally decided by the Board in April 2018. Following the Board’s decision, the Veteran appealed the Board’s denial of service connection for bilateral tinnitus to the Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the hearing loss issue. In June 2019, the Court issued a Memorandum Decision and vacated the Board’s April 2018 denial of the tinnitus claim and remanded the matter to the Board for additional action in accordance with the decision. Service Connection for Bilateral Tinnitus The Veteran has claimed that his current bilateral tinnitus is causally connected to noise exposure during his active service. Alternatively, he suggested, at his January 2012 VA examination, that his tinnitus initially onset in 1973 during monthly service with the Air National Guard following exposure to aircraft noise, and that it has continued ever since. With regard to his claim that service connection is warranted on a direct basis, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A January 2012 VA examiner confirmed the current diagnosis of tinnitus. Further, VA has conceded that the Veteran was likely exposed to acoustic trauma in service. A November 2011 deferred rating decision shows that the January 2012 VA examination was ordered because the RO recognized the Veteran’s in-service duty specialty was Carpentry and Masonry Specialist, which has a high probability of noise exposure. The question remains whether there is a causal connection between the current disability and the Veteran’s active service. In January 2012, a VA examiner concluded, without a well-reasoned explanation, that the Veteran’s tinnitus is a symptom of his hearing loss. The Court’s Memorandum Decision found this to be an inadequate opinion as the examiner merely checked a box and provided no well-reasoned rationale. Remand is, therefore, required in order to obtain an addendum opinion related to whether the Veteran’s tinnitus is at least as likely as not caused by in-service noise exposure or any other aspect of the Veteran’s active service. As noted above, the Veteran has alternatively suggested that his tinnitus first onset in 1973 at the time of Air National Guard service when he was exposed to aircraft noise. He reported experiencing it at that time and that it has continued ever since. Certain chronic diseases, including tinnitus, an organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; also see Fountain v. McDonald, 27 Vet. App. 258 (2015). However, presumptive periods do not apply to periods of Active Duty for Training (ACDUTRA) or Inactive Duty for Training (INACDUTRA). See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases such as tinnitus) for any period of ACUTRA or INACDUTRA is not appropriate. For a period of ACDUTRA, there must be competent evidence that the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and for a period of INACDUTRA, there must be competent evidence that the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a), (d). On remand, the RO should verify whether the Veteran had any periods of ACDUTRA or INACDUTRA in 1973. If so, the addendum opinion should include an opinion as to this aspect of the Veteran’s claim. The matters are REMANDED for the following action: 1. Contact all appropriate resources to verify the specific dates when the Veteran was on ACDUTRA or INACDUTRA with the Air National Guard. Of particular importance are any periods of ACDUTRA or INACDUTRA in 1973, as the Veteran claims his tinnitus started in 1973 after exposure to aircraft noise in the Air National Guard. Document for the claims file what repositories were contacted and what response was received. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Records concerning service merely denoting the amounts of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on serving on ACDUTRA, and INACDUTRA. 2. Once the information related to the Veteran’s periods of ACDUTRA and INACDUTRA is associated with the claims file, provide the file to an appropriate clinician for an opinion as to the etiology of the Veteran’s bilateral tinnitus. The examiner must opine whether it is at least as likely as not that the tinnitus is related to an in-service injury, event, or disease, including the conceded in-service noise exposure. The examiner must recognize that the Veteran reported the onset of tinnitus in 1973, close in time to his active service and prior to any showing of hearing impairment. If the RO determines that the Veteran had periods of INACDUTRA or ACDUTRA in 1973, then the examiner must also address the Veteran’s contention that the tinnitus began in 1973 during his service with the Air National Guard after being hear aircraft noise. The examiner should opine whether it is at least as likely as not that the tinnitus is due to a disease or injury incurred during a period of ACDUTRA, or due to an injury incurred during any period of INACDUTRA, to include acoustic trauma. The Board reminds the RO that the Court vacated the Board’s prior decision and remanded the matter because the January 2012 examiner did not provide a well-reasoned opinion related to whether the Veteran’s tinnitus was incurred in service. The addendum report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.