Citation Nr: 1237707 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 09-10 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Wife ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1944 to May 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran and his wife testified at a Board hearing at the RO in St. Louis, Missouri in September 2010. This transcript has been associated with the file. In a December 2010 decision the Board denied entitlement to service connection for tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011 the Court endorsed a Joint Motion for Remand (JMR) vacating the Board's denial of the Veteran's tinnitus claim and remanding the matter for further proceedings. This case was again before the Board in November 2011 at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. The Board notes that the issue of service connection for bilateral hearing loss disability had also been perfected for appeal and was the subject of the Board's previous decisions/remands. However, in a July 2012 rating decision, the RO granted service connection for a bilateral hearing loss disability. The Veteran has not disagreed with the assigned disability ratings or the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) Therefore, this matter is considered resolved and is not in appellate status. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran was most recently afforded an examination in December 2011 and addendum reports were rendered in February and June 2012. The June 2012 examination report reflects that the examiner concluded that tinnitus was less likely caused by or due to in-service noise exposure or hearing loss. The Board finds several deficiencies with that examination report. At the time of the Veteran's VA examination, he was not service-connected for a bilateral hearing loss disability. Additionally, while the examiner indicated that tinnitus was not due to hearing loss disability, she did not offer an opinion as to whether the Veteran's tinnitus was aggravated by his service-connected bilateral hearing loss. As such, the claim should be remanded for an addendum opinion addressing whether tinnitus was aggravated by service-connected hearing loss disability. See Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; see also 38 C.F.R. § 3.310 (2011). (The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate); Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Request that the December 2011 VA examiner review the claims file and offer an addendum opinion regarding the tinnitus. If the examiner is unavailable, forward the claims folder to a similarly qualified clinician. If examination of the Veteran is deemed necessary, such should be arranged. Taking all the evidence into account, the examiner should offer an opinion as to whether there is a probability of 50 percent or greater that the Veteran's current tinnitus was either (1) caused by or (2) is aggravated by the Veteran's service-connected hearing loss disability. If the examiner determines that the Veteran's tinnitus is aggravated by the service-connected hearing loss disability, the examiner should report the baseline level of severity of the nonservice-connected tinnitus prior to the onset of aggravation. If some of the increase in severity of the nonservice-connected tinnitus is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The report must be typed. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2011).