Citation Nr: 1309965 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-48 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1966 and August 1968. These matters come on appeal before the Board of Veterans' Appeals (Board) from March 2010 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." 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 A review of the claims file reveals that further development on the matter of entitlement to service connection for tinnitus is warranted. Generally, to award entitlement to service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The Veteran originally filed his claim for entitlement to service connection for bilateral tinnitus in November 2009. At that time, he has asserted that his tinnitus was the direct result of acoustic trauma. While service treatment records did not reflect any complaints, findings, or diagnoses of tinnitus, the Board has also considered the Veteran's statements concerning in-service noise exposure to jet engines and helicopters as well as his documented duty assignments, to include the Veteran's military occupational specialty listed as Petrol Storage Specialist as well as his awards for marksmanship on his DD Form 214. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). In-service incurrence of injury is therefore met as to acoustic trauma. The Board also notes that there is no dispute that the Veteran is competent to report tinnitus symptoms he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A finding of a nexus between the Veteran's current tinnitus and in-service noise exposure is still needed. In the February 2010 VA examination report, the Veteran reported problems once in a while from his ears plugging up with wax as well as recurrent bilateral tinnitus that began a long time ago. He reported that he noticed the noise in his ears once in a while with it lasting for a couple of minutes. He further noted that his ears fill with wax and then he has ringing in his ears. The Veteran indicated that he will periodically get his ears cleaned out and then he won't have the ringing again unless he gets a lot of wax in his ear. The examiner noted that the Veteran had been previously seen for collapsing canal on left as well as cerumen removal. She further noted that build-up of cerumen can create tinnitus, balance, discomfort, and other symptoms. After reviewing the claims file, the VA examiner, a VA audiologist, opined that the Veteran's tinnitus was not caused by or a result of military noise exposure. The examiner highlighted that the Veteran's reported history was consistent with periodic cerumen impaction creating problems with noise in ears and that the noise in ears was reliably resolved with cerumen removal. Thereafter, in his July 2010 notice of disagreement, the Veteran asserted that the VA examiner misunderstood him. He indicated that he had suffered from tinnitus since service and that the condition gets worse when his ears fill with wax. He clarified that he still has a problem with ringing in his ears even after wax removal. In a November 2010 addendum, the VA examiner who conducted the February 2010 VA examination indicated that her opinion remained unchanged. She noted that the Veteran was questioned regarding any ringing or noise of any kind in his ears, a fact that was fully apparent by the careful description of the cerumen issue and its relationship to the Veteran's ringing in the ears. She again concluded that it was not likely that the Veteran's tinnitus was related to his military noise exposure. The Board notes that the above referenced VA examiner did not adequately discuss or consider the Veteran's lay assertions concerning onset or continuity of his claimed tinnitus as well as his clarified statements concerning the existence of tinnitus even after cerumen removal. The Board therefore finds that the VA examiner's conclusions in her February 2010 examination report and November 2010 addendum opinion are inadequate for adjudication purposes. In light of the cumulative record discussed above, the AMC should arrange for an additional VA medical opinion to clarify the etiology of the Veteran's claimed tinnitus on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. The AMC should obtain a VA medical opinion from an appropriate ENT (Ear, Nose, and Throat) physician to clarify the etiology of the Veteran's claimed tinnitus. The claims file and all records on Virtual VA must be made available to the examiner for review in conjunction with the opinion, and the examiner must indicate in his or her report that the claims folder and any pertinent Virtual VA records were so reviewed. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the diagnosed bilateral tinnitus is casually related to the Veteran's period of active service, to include conceded in-service noise exposure. In doing so, the examiner should acknowledge and discuss the statements from the Veteran asserting in-service noise exposure, continuity of tinnitus since service, a causal connection between his claimed bilateral tinnitus and service, and the existence of tinnitus both before and after cerumen removal. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After the development requested has been completed, the AMC must review the medical opinion to ensure that it is in complete compliance with the directives of this Remand. If the medical opinion is deficient in any manner, the AMC must implement corrective procedures at once. 3. Upon completion of the above, readjudicate the issue on appeal, with consideration of all evidence obtained since the issuance of the December 2010 SOC. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant 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. 2012). _________________________________________________ L. M. BARNARD 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) (2012).