Citation Nr: 1309949 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-45 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from November 1994 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for bilateral hearing loss and tinnitus. In November 2009, the Veteran submitted a notice of disagreement as to both issues. In March 2010, however, she submitted a statement indicating that she was appealing the denial of service connection for tinnitus and not hearing loss. In November 2010, a statement of the case was furnished on the issue of service connection for tinnitus. The Veteran subsequently perfected this appeal. The Virtual VA eFolder has been reviewed. 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 she has tinnitus related to military noise exposure. She has reported that she served aboard an aircraft carrier and that she was exposed to significant noise on the flight deck. The Veteran is competent to report in-service noise exposure as well as ringing in her ears. Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation, such as tinnitus). Moreover, her service personnel records show that she did service aboard the USS Nimitz and that her primary specialty was airman. Thus, the Veteran's reports are consistent with her military duties. The Veteran was afforded a VA examination in May 2009 in connection with her claim. The examiner noted that she had reported having constant bilateral tinnitus that she first noticed approximately four years earlier. She diagnosed the Veteran with bilateral tinnitus, but opined that it was less than likely related to her military service because it began six years after her separation. In a February 2010 statement, the Veteran alleged that the VA examiner misquoted her. In particular, she indicated that she actually began having ringing in her ears during service and instead told the examiner that her hearing loss began to greatly affect her social interactions and work performance four years earlier. In her November 2010 VA Form 9, the Veteran stated that she wore hearing protection and was told by her superiors that the ringing in her ears would eventually go away. She indicated that she never sought medical treatment or complained of the ringing because she was under the impression that nothing could be done about it and that it would resolve. She stated that it never went away, but instead continued after service and progressively increased in duration and frequency. She again argued that the VA examiner "grossly misquoted" her. Based on the Veteran's statements, it appears that the May 2009 VA examiner may have based her opinion on an inaccurate history. She relied on the fact that the Veteran's tinnitus began after service, but the Veteran has indicated that it actually began during service. As noted above, the Veteran is competent to report that she had ringing in her ears. Charles v. Principi, 16 Vet. App. 370 (2002). Under these circumstances, an additional medical opinion, which considers the Veteran's reported history, is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should refer the Veteran's file to the May 2009 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's current tinnitus. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The Veteran has claimed that she had military noise exposure while serving aboard the USS Nimitz and began experiencing ringing in her ears during service. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current tinnitus is causally or etiologically related to her military service, including noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of tinnitus and describe how tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how tinnitus develops from other causes, in determining the likelihood that current tinnitus was caused by noise exposure in service as opposed to some other cause. A complete rationale for any opinion expressed must be provided. 2. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO should implement corrective procedures at once. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for tinnitus. All applicable laws and regulations should be addressed. If the benefit sought on appeal remains denied, the appellant and her representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ JESSICA J. WILLS 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).