Citation Nr: 1303741 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 12-27 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1957 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran currently resides in Florence, Italy. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for bilateral hearing loss, claimed as deafness, and tinnitus. Specifically, the Veteran alleges that he suffers from current hearing loss and tinnitus as a result of exposure to in-service acoustic trauma in the form of M-1 rifles, tanks, and Morse code receivers. The Veteran's DD Form 214 reflects that his military occupational specialty was an engineering equipment mechanic, and that he was enrolled in radio code courses from October 1957 to January 1958. The Veteran contends that his hearing was within normal limits prior to his entry into service and that, if it was not, he would not have been selected to enroll in Morse code courses. Following his separation from service in 1959, the Veteran worked as a draftsman, mathematician, mathematics and science teacher, and financial technician. The Veteran claims that all of these jobs were performed in rooms and offices without high levels of noise. Unfortunately, the Veteran's service treatment records are not of record, as the RO determined in April 2009 that they were destroyed in the National Personnel Records Center's 1973 fire at their St. Louis, Missouri, facility. In cases where service records are unavailable, there is a heightened obligation to assist the claimant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In correspondence dated in April 2010, the Veteran's private physician indicated that he had been diagnosed with marked perceptive bilateral hypoacusia of the progressive degenerative form in the internal ear for approximately 15 years and required the use of hearing aids. The physician also reported that the Veteran suffered from tinnitus and frequent episodes of dizziness. The Veteran was provided a VA examination in September 2011, at which time he was diagnosed as having bilateral sensorineural hearing loss and tinnitus. However, the Veteran's claims file was not reviewed by the examiner prior to this examination. Moreover, the examiner indicated that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The examiner also opined that the Veteran's tinnitus, which had its onset in approximately 1998, was at least as likely as not (50 percent probability or greater) a symptom associated with the diagnosed hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Although the examiner did not mention the Veteran's allegations of in-service noise exposure, the RO's July 2011 Request for Physical Examination indicated that excessive military noise exposure was being conceded based on the Veteran's military occupational specialty. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the September 2011 opinion is inadequate because there was no explanation provided for the statement that an etiology opinion could not be offered without speculation. The examiner must indicate what information is missing that would allow for a non-speculative opinion, and steps must be taken to obtain that information. Jones v. Shinseki, 23 Vet. App. 382 (2010). Alternatively, the examiner should offer an opinion that does not require speculation. In addition, the September 2011 examination was conducted without the benefit of the Veteran's claims file. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA audiological examination to determine the probable etiology of his currently diagnosed bilateral hearing loss and tinnitus. Specifically, the examiner should review the claims file and determine if the Veteran's currently diagnosed bilateral hearing loss and tinnitus are at least as likely as not (50 percent probability or greater) related to his military service, to include his excessive military noise exposure, which has been conceded. A complete rationale must be provided for all opinions expressed. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed. If the examiner finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate and the reasons why including indicating what information would be needed in order to offer an opinion without resorting to speculation. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).