Citation Nr: 1306247 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-02 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a psychiatric disability, to include depression, paranoia, and anxiety disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from March 1971 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for depression, paranoia, and anxiety disorder. It also comes on appeal from a January 2007 rating decision of the same RO that, in pertinent part, denied service connection for tinnitus. In March 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in September 2008, at which time the Board denied the Veteran's claims. The Veteran appealed the September 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2009, the Court vacated the Board's September 2008 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). Following additional development, in a May 2011 decision, the Board again denied the Veteran's claim for entitlement to service connection for tinnitus and remanded his claim for entitlement to an acquired psychiatric disability. The Veteran appealed the Board's May 2011 denial of his tinnitus claim to the Court, which vacated the Board's decision with respect to the issue of service connection for tinnitus in an August 2012 Memorandum Decision and remanded the case to the Board for development. 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 contends that he has tinnitus as a result of in-service noise exposure. The Veteran was afforded a VA audiological examination in November 2006, at which time he was diagnosed as having tinnitus as well as bilateral sensorineural hearing loss. However, the examiner indicated that the question of whether tinnitus was more likely than not incurred in or caused by active military service could not be resolved without resorting to mere speculation. The examiner explained that the Veteran's service treatment records were negative for tinnitus, and that the only medical documentation of tinnitus associated with the claims file was in September 2002. The examiner noted that although it could be argued that aggravation of hearing impairment could be accompanied by tinnitus, the examiner knew of no generally-accepted, research-based evidence that this was more likely than not the case. The examiner further noted that it could just as strongly be argued that the tinnitus was as likely as not present prior to active duty given the severity of the Veteran's hearing loss which preexisted service. The Veteran contends that the high-intensity noise environment inherent in regular flight line duties for an F-104 fighter squadron while stationed with the United States Air Force at Kleine Brogel Air Base in Kleine Brogel, Belgium, led to his current tinnitus. The Veteran has indicated he experienced ringing in his ears since separation from service in April 1975. His DD Form 214 confirms that he served in the Air Force as an Inventory Management Specialist. In its May 2011 decision, the Board found that the Veteran's exposure to acoustic trauma in service was conceded as consistent with the circumstances of his service in the Air Force. See 38 U.S.C.A. § 1154(a). The Board notes that the Veteran has also been granted entitlement to service connection for bilateral hearing loss. In doing so, the Board explicitly found in its May 2011 decision that the presumption of soundness had not been rebutted. As such, the Board's May 2011 decision, which conceded in-service acoustic trauma and found that the presumption of soundness at entry into service had not been rebutted, renders the November 2006 VA examiner's opinion inadequate, as it was based on a conflicting factual premise. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Veteran should be afforded a new VA audiological examination consistent with the factual premise articulated in the Board's May 2011 decision. The Veteran also seeks entitlement to service connection for an acquired psychiatric disability. In its May 2011 decision, the Board remanded this issue with instructions to inform the Veteran of his right to have a hearing on this issue and to schedule such a hearing if the Veteran so desired. However, to date, there is no evidence of record that VA complied with the Board's remand instructions with regard to notifying the Veteran of his right to a Board hearing on the issue of entitlement to service connection for an acquired psychiatric disability. Where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination on the issue of entitlement to service connection for tinnitus to determine whether it is at least as likely as not (50 percent or greater) that the Veteran has any such disability that is causally related to his military service. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed tinnitus is proximately due to, the result of, or chronically aggravated (worsened) by his service-connected bilateral hearing loss. The term "aggravation" means that there is an increase in severity of a nonservice-connected disability or an injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The claims file should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. Any opinion expressed should be accompanied by a complete rationale. The examiner must consider that the Board has previously conceded in-service acoustic trauma and found that the Veteran was sound upon entry into service. 2. Following completion of the above, readjudicate the issue of entitlement to service connection for tinnitus, with consideration of all evidence of record received since issuance of the February 2011 supplemental statement of the case. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate, for further appellate consideration. 3. Thereafter, inform the Veteran of his right to have a hearing on the issue of entitlement to service connection for an acquired psychiatric disability before a Veterans Law Judge of the Board at a local RO (Travel Board hearing or via videoconference). If the Veteran elects to have a Travel Board hearing at the local RO or a Board hearing via videoconference from the local RO, such a Board hearing should be scheduled. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).