Citation Nr: 23019652 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 19-05 606 DATE: March 30, 2023 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to a disability evaluation in excess of 20 percent for service-connected diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to May 1971. Evidence affiliated with the claims file reflects that the Veteran also served in the Reserve until May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service Connection - Tinnitus As noted above, there is evidence associated with the claims file that the Veteran served in the Reserve until May 1974. Even though the claims file contains service treatment records and service personnel records reflecting the Veteran's performance, assignments, points, and awards, the precise dates of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA. The RO should also obtain and associate with the claims file any and all outstanding Reserve medical records. Because the Veteran may be entitled to service connection for any diseases and/or injuries incurred during ACDUTRA or any injuries incurred during INACDUTRA, and because the medical opinion of record does not address these theories of entitlement, the Board finds that remand is warranted for an addendum opinion to determine whether the Veteran's tinnitus is due to noise exposure during ACDUTRA and/or INACDUTRA. The Board also acknowledges receipt of a June 2018 opinion concluding that the Veteran's tinnitus is less likely than not causally related to his active duty service. In support of this opinion, the examiner reasoned that the Veteran's entrance and separation examinations both indicated normal hearing levels. The Veteran's entrance examination took place in April 1968, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) or International Standards Organization - American National Standards Institute (ASO-INSI) units, the Board finds that the examiner did not consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Additionally, the examiner indicated that "there was no objective evidence of noise injury" in the Veteran's service treatment records. An examiner cannot rely on a lack of contemporaneous documentation without providing a foundation "to demonstrate that such silence in the record has a tendency to prove or disprove a relevant fact." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (quoting Horn v. Shinseki, 25 Vet. App. 231, 239 n. 7 (2012)). Without such a foundation indicating that silence in the Veteran's service treatment records tends to prove or disprove a relevant fact, this opinion is not adequate. Therefore, the Board requests an addendum opinion to determine the nature and etiology of the Veteran's tinnitus. 2. Increased Rating - Diabetes Mellitus Concerning the Veteran's claim for an increased disability evaluation for his service-connected diabetes mellitus, the Board acknowledges that the most recent medical records regarding his condition are dated in August 2018 and were received in September 2018. On remand, the Board requests that the RO obtain the Veteran's updated medical records. The Veteran was also most recently examined for his condition in June 2018, almost five years ago. Given the many years since the last examination and the subsequent medical treatment, the Board requests an updated examination to determine the current nature and severity of his diabetes mellitus. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran's award of Reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA, must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of active military service, whether on active duty, ACDUTRA, or INACDUTRA. Any and all outstanding service treatment records from the Veteran's Reserve service, if available, should also be obtained. 2. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case, if possible, to determine the nature and etiology of the Veteran's tinnitus. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. If a contemporaneous examination is provided, the clinician should elicit from the Veteran his pre-military, in-service, and post-military history of noise exposure. The clinician should opine as to whether it is at least as likely as not that the Veteran's tinnitus manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA, to include noise exposure. In formulating his or her opinion(s), the clinician must consider and address the competent medical and lay evidence of record, including but not limited to: (i) The Veteran's service treatment records; (ii) The Veteran's service personnel records, including those indicating his dates of active duty service, ACDUTRA, and INACDUTRA; (iii) The Veteran's Military Occupational Specialty (MOS) and its probably of hazardous noise exposure as confirmed in the Department of Defense MOS Noise Exposure Listing; (iv) The Veteran's post-service medical records; and (v) The Veteran's competent lay statements, including but not limited to those made to his medical providers and his July 2018 Notice of Disagreement (NOD) regarding his first-hand in-service experiences and the onset and continuity of his symptomatology. If the clinician determines that the Veteran's tinnitus is less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should ascertain the most likely etiology of the Veteran's tinnitus. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. The RO should request the Veteran to identify any and all updated VA and/or private medical records regarding his diabetes mellitus, including from August 2018 to the present. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 4. Schedule the Veteran for an appropriate examination to determine the current nature and severity of his condition. The examiner must review the claims file and should note that review in the report. All necessary studies and tests must be performed, the results of which must be reported in full. The examiner should provide a full description of the disability and report all signs and symptoms necessary to evaluate the Veteran's disability under the rating criteria. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.