BVA9505826 DOCKET NO. 93-12 973 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a chronic pulmonary disorder, to include asthma. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to February 1992. This appeal is before the Board of Veterans' Appeals (the Board) from an October 1992 rating decision of the Regional Office (RO) which denied service connection for asthma and tinnitus. The Board notes that in the veteran's application for VA compensation benefits he listed several different lung and breathing disorders, in addition to asthma. After a review of the service medical records, the Board believes that the issue on appeal should be "service connection for a chronic pulmonary disorder, to include asthma." EF v. Derwinski, 1 Vet.App. 324, 326 (1991). In light of this finding, the Board has determined that further development is warranted for the veteran's claim for service connection for a chronic pulmonary disorder, to include asthma. Therefore, that issue will be addressed in the REMAND section following the Board's decision as to the issue of service connection for tinnitus. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for tinnitus as he was exposed to acoustic trauma in the form of artillery fire in Vietnam for 24 months and turbine engine noise throughout his service career. The veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence warrants a grant of service connection for tinnitus. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran, reportedly, was routinely exposed to hazardous noise during his years of active service. 3. The veteran was noted to complain of intermittent tinnitus in April 1992, shortly after his separation from service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A review of the veteran's service medical records does not disclose any complaints, findings, or treatment for tinnitus during service. However, it is noted on the veteran's separation audiological examination report, dated in January 1992, that he had routinely been exposed to hazardous noise during his years of active service. Furthermore, the veteran listed "ringing in the ears" as a claimed disability on his application for VA benefits, dated in March 1992. In addition, the VA audiological examination report, dated in April 1992, noted that the veteran complained of tinnitus after being around loud noises which lasted from 5 to 20 minutes. Therefore, the Board finds, based on the veteran's complaints and history of prolonged exposure to hazardous noise levels, that the doctrine of reasonable doubt requires a grant of service connection for tinnitus. ORDER Service connection for tinnitus is granted. REMAND A review of the veteran's application for VA benefits, dated in March 1992, reveals that the veteran listed several alleged lung and breathing disorders or disabilities in addition to asthma. A review of the veteran's service medical records reveals that he was treated for symptoms of wheezing, lung and nasal congestion, shortness of breath, and/or productive cough while in service. A history of asthma was first noted in 1976. In February 1981 a pulmonary function test revealed moderate obstructive pulmonary disease. In March 1983 he was given a medical defect waiver because his asthma was insignificant. Also in 1983 he was noted to use an inhaler. In 1991 he was diagnosed to have bronchitis and reactive airway disease; he was also diagnosed to have a viral infection vs. asthma. Again, in 1991 the veteran was noted to use an inhaler. Thus, the Board finds that there appear to be several different diagnoses related to the veteran's breathing problems in the service medical records. The Board further notes the VA examination conducted in April 1992 did not address any pulmonary complaints. In addition, the April 1992 examination report noted that the veteran denied smoking, yet the service medical records clearly indicate a long history of smoking 3/4 pack of cigarettes a day. The VA has a duty to assist the veteran in developing pertinent information relating to his claim pursuant to 38 U.S.C.A. § 5107(a) (West 1991). The Court of Veterans Appeals (the Court) has held that the duty to assist also includes providing a thorough and contemporaneous medical examination, which takes into account prior medical evaluations and treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). The Court has also held that when the Board concludes the medical evidence of record is insufficient it may supplement the record by ordering a medical examination. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In light of the above facts, the Board has determined that the case should be REMANDED for further development of the veteran's claim for service connection for a chronic pulmonary disorder, to include asthma. 1. The veteran should be afforded a VA examination by a pulmonary specialist to determine the nature and severity of any lung pathology. Subjective complaints and objective findings should be legibly recorded in detail. All indicated tests and studies, including X-rays, should also be conducted. The claims folder must be made available for review by the medical examiner prior to the examination to facilitate study of this case. The examiner should be requested to present all opinions and findings, and the reasons therefor, in a clear, comprehensive, and legible manner on the examination report. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 3. After the development requested above has been completed to the extent possible, the RO should readjudicate the veteran's claim for a chronic pulmonary disorder, to include asthma. If the claim remains denied, the veteran and his representative should be issued a supplemental statement of the case and they should be afforded the appropriate period of time within which to respond thereto. Then, if otherwise in order, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).