Citation Nr: 21009530 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-55 575 DATE: February 22, 2021 REMANDED 1. Entitlement to service connection for tinnitus is remanded. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right elbow disability, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1983 to February 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 Department of Veterans Affairs (VA) rating decision, which granted service connection for a right elbow disability (rated 0 percent effective August 3, 2011) and denied service connection for a left shoulder disability and tinnitus. An August 2016 rating decision (following a September 2013 notice of disagreement (NOD) initiating appeals for the rating assigned for the right elbow disability and the denial of service connection for the left shoulder disability and tinnitus) increased (to a combined 20 percent under Codes 5003-5206 and 5213) the rating for the right elbow disability, effective September 15, 2015. In November 2020, a virtual hearing was held before the undersigned; a transcript is in the record. At the hearing, the Veteran presented a motion for advancement of this case on the Board’s docket based on severe financial hardship. Serious financial hardship sufficient for advancement of this case on the Board’s docket is shown. Accordingly, the appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). [Although the Veteran submitted a NOD for the staged increased rating for the right elbow disability, his November 2016 VA Form 9 expressly limited the appeals before the Board to service connection for the left shoulder disability and tinnitus. Therefore, the matter of the rating for a right elbow disability is not before the Board.] 1. Entitlement to service connection for tinnitus. The Veteran alleges his tinnitus is due to exposure to hazardous level noise in service. At the November 2020 hearing, he testified that he first reported tinnitus when he sought treatment at West Los Angeles or Long Beach VA medical centers (VAMC) between 1987 and 1989. A February 6, 1987 treatment record from Long Beach VAMC notes the documents have been scanned into VistA Imaging system; although their existence is noted, those record are not available in the claims file for review by the Board. Such records must be made available to adjudicators and the Board, so that the record for consideration of the remaining appeals is complete An April 2018 VA memorandum includes a finding of unavailability of VA treatment records. Although the memorandum does not specify which VAMC records are unavailable, it references VA correspondence to the West Los Angeles VAMC requesting records from 1990 to 1998. However, a close review of the claims file found that finding is based on VA attempting to contacting the Los Angeles VAMC on January 1, 2018, February 10, 2018, and March 14, 2018 and not receiving a response from the West Los Angeles VAMC to any of the three attempts. Thus, the formal finding was based on a less than exhaustive search. VA treatment records are constructively of record, and an exhaustive search for all outstanding pertinent records of the Veteran’s reported treatment is necessary. 2. Entitlement to service connection for a left shoulder disability. The Veteran alleges his left shoulder condition is related to his service-connected right elbow disability. On August 2013 VA examination, a left shoulder sprain was diagnosed. The examiner opined the Veteran’s right elbow disability is not debilitated enough for the left arm to be strained from over-use and opined (without rationale) the left shoulder condition is likely due to the natural wear and tear of use. However, since the August 2013 VA shoulder examination, an August 2016 rating decision increased the rating for the right elbow disability (based on September 2015 VA elbow examination documenting limited range of motion in extension and flexion) and September 2017 VA diagnostic testing found osteoarthritis in the left shoulder (so the right elbow disability is assumed to be more severe than found on August 2013 examination). Moreover, a November 2017 VA treatment record notes complaints of worsening left shoulder pain and a feeling that range of motion in his shoulder is decreasing. A contemporaneous examination to assess the nature and likely etiology of the left shoulder disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following: 1. Arrange for exhaustive development to locate, and secure for the record, all outstanding VA records of evaluations and treatment the veteran received for the disabilities on appeal (specifically including once-identified-as-existing records from West Los Angeles VAMC prior to November 1998 and February 1987 VistA imaging from Long Beach VAMC). He should be asked to submit any such VA treatment records in his possession (if he does not do so, the assumption being that he has none). Efforts to secure such records must continue until it is reasonably certain that such records do not exist or that further effort to obtain those records would be futile (upon a negative response from the West Los Angeles VAMC and any record storage facility where such records may have been retired). The scope of the search and all responses should be documented in the record. If any records are unavailable because they have been irretrievably lost or destroyed, a formal finding of unavailability (with the scope of the search described in detail) should be associated with the claims file, and the Veteran should be so notified. 2. Then arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his left shoulder disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should: (a.) Identify by diagnosis each left shoulder disability found on examination or shown by the record during the pendency of the appeal. (b.) Identify the likely etiology for each left shoulder disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the disability was caused or aggravated by (increased in severity due to) the Veteran’s service-connected right elbow disability. [The opinion must address aggravation.] (c.) If it is found that his service-connected right elbow disability did not cause, but aggravated, the Veteran’s left shoulder disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (d.) If a diagnosed left shoulder disability is determined to not have been caused or aggravated by the service-connected right elbow disability, identify the etiology for the back considered to be more likely (and explain why that is so). All opinions must include rationale. If the examiner cannot provide a requested opinion without resort to mere speculation, it must be so stated, with explanation why an opinion would require speculation (e.g., whether further information or testing necessary was needed, to make a determination; or whether the opinion could not be rendered due to limitations in the knowledge of the medical community at large or of the particular examiner). 3. Review any records from the West Los Angeles and Long Beach VAMCs received pursuant to the development sought above (search for complaints or notations of tinnitus), and arrange for any further development suggested by information found in those records. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate 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.