Citation Nr: 1311069 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-11 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1964 to November 1964 and from May 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the Veteran's claims. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal must again be remanded for further development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. The issues on appeal were remanded by the Board in September 2011, in part, to obtain opinions as to the etiology of the Veteran's hearing loss and tinnitus and to determine if they are linked to his active duty service. The Board specifically directed that the VA examiner who conducts the examination should note a March 2007 private audiologist's letter, as well as the Veteran's assertions of continuity of symptomatology in determining the etiology of the disorders. The Board further directed that the VA examiner must provide clear and thorough rationale supporting the etiology opinion with references to the evidence of record and must provide a discussion of the facts and medical principles involved. In response to the Board's remand, a VA examination was conducted in November 2011. Unfortunately, a review of the examination report demonstrates that it is not responsive to the Board's September 2011 remand directions. The examiner opined that it was "not at least as likely as not" that the Veteran's hearing loss and tinnitus were linked to his active duty noise exposure. With regard to a rationale, the examiner merely noted that hearing examinations conducted during active duty in 1964, 1967, and in 1969 were all within normal limits. The tinnitus rationale included the annotation that the tinnitus was consistent with hearing loss acquired after military the Veteran's military service. The Board finds this bare statement without "a discussion of the facts and medical principles involved" does not comply the remand instructions. The mere fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran's claim. Service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. §§ 3.303(d), 3.385 (2012). The Board finds the examiner who conducted the November 2011 VA examination must provide sufficient rationale for the opinions which includes a discussion of the facts and medical principles involved. The he report of the November 2011 audiological examination did not include any reference to the March 2007 private audiologist's report nor any reference to the Veteran's assertions of continuity of hearing loss and tinnitus symptomatology. The Board finds the examiner who conducted the November 2011 VA examination must address this evidence and indicate whether it changes the etiology opinions provided. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Because the Board's remand instructions have not been complied with, the case must be remanded so that this may be accomplished. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The audiologist who conducted the November 2011 VA audiology examination must prepare an addendum to the November 2011 examination. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Thereafter, the examiner must address the following: a). The examiner must review the March 2007 private audiologist's report and also acknowledge the Veteran's assertions of continuity of hearing loss and tinnitus symptomatology and determine if this evidence changes the previously supplied opinion regarding the etiology of the hearing loss and/or tinnitus. This opinion must address whether any degree of the Veteran's currently diagnosed bilateral sensorineural hearing loss and/or tinnitus are related to his military service, to include his presumed in-service noise exposure. If the examiner determines that an additional examination and/or diagnostic testing are necessary, this must be accomplished. A report must be prepared and associated with the evidence of record. The examiner must provide clear and thorough rationale for her conclusions with references to the evidence of record and must provide a discussion of the facts and medical principles involved. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If the audiologist who conducted the November 2011 VA examination is unavailable or unable to provide an addendum to the previous opinion, an audiologist with appropriate expertise must review the claims file and all records on Virtual VA, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a review of the evidence of record, the examiner must provide the medical opinions directed by this Remand. 3. Following any further development that deemed necessary, the Veteran's claims must then be readjudicated. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case must then be returned to the Board for further consideration, if otherwise in order. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).