Citation Nr: 1307083 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 08-16 423A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from September 1961 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in April 2011 before the undersigned. A copy of the transcript has been associated with the claims file. In September 2011 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. 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 While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. In September 2011, the Board remanded this case so that an addendum opinion could be obtained for the Veteran's October 2007 VA examination. The addendum opinion was requested because the Veteran reported being exposed to noise in service in his original claim and during his April 2011 hearing before the undersigned. At his hearing, he testified that he first noticed tinnitus when he was at Hunter Air Force Base during the Cuban Missile Crisis (approximately 1962) and that he first noticed hearing loss in 1964. The Veteran is competent to discuss observable symptomatology such as hearing loss and tinnitus. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). In October 2007, the examiner did not acknowledge that the Veteran was competent to report noise exposure in service or experiencing observable symptoms in service. In the September 2011 remand, the Board asked the examiner to specifically address the Veteran's lay statements. The examiner was asked to provide commentary "regarding the Veteran's reports of in-service noise exposure, hearing loss, and ringing in the ears." The October 2011 addendum opinion did not discuss the Veteran's lay assertions. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore another remand is necessary so that the examiner may provide commentary on the Veteran's lay assertions, as requested in the previous remand. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the October 2007 examination and provided the October 2011 addendum opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has bilateral hearing loss and tinnitus that had their onset or were aggravated during active service, or are otherwise related to any incident of service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus began during active service or are related to any incident of service. d) In providing this opinion, the examiner must be made aware of the Veteran's description of noise exposure before, during, and after service, and must be advised that the Veteran is competent to report observable events and symptoms. e) The examiner must provide commentary regarding the Veteran's reports of in-service noise exposure, onset of tinnitus in 1962, and onset of hearing loss in 1964. f) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. g) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2011). _________________________________________________ S. L. Kennedy 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).