Citation Nr: 0809655 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-30 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from March 1953 to March 1955. The instant appeal arose from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which denied a claim for service connection for tinnitus. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND This case was remanded by the Board of Veterans' Appeals (Board) in April 2006 for the sole purpose of obtaining a medical opinion as to whether the veteran has tinnitus that is related to service. While the subsequent August 2006 VA examination report diagnosed tinnitus, the examiner stated that she "cannot resolve this issue [as to whether the tinnitus was as likely as not caused by active service] without resorting to mere speculation." The United States Court of Appeals for Veterans Claims (Court) has held that "when a nexus between a current disability and an in-service event is 'indicated,' there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus." (emphasis added) McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (speculative medical opinion cannot establish in-service medical nexus to service); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (remanding claim for service connection for polyneuropathy because VA examiner's statement that he "could not rule out nutrition deficiency as a prisoner of war" as the cause of the appellant's polyneuropathy was too ambiguous to support the Board's finding that the condition was not service connected). Thus, further development, in the form of another medical opinion, is warranted, as certain action requested in the 2006 Board remand has not been performed in full. Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion (with examination, if necessary) to determine the etiology of the veteran's tinnitus. The examiner must have an opportunity to review the veteran's claims file. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater); that his tinnitus is related to service. A complete rationale for any opinion expressed should be included in the evaluation report, to include upon what medical principles the opinion is based and citation to the evidence of record upon which the opinion is based. 2. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims since the issuance of the last SSOC. The veteran and his representative should be given the opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2007).