Citation Nr: 1312837 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-37 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to January 1945. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As was noted in the Board's prior remand, the Veteran's DD Form 214 reveals that during service he was a radio repairman and also trained as a Rifle Sharpshooter and Carbine Expert. Moreover, the Veteran reported that he was exposed to the firing of .50 caliber guns and larger guns while serving, as well as fitting radars to anti-aircraft weaponry. VA conceded that the Veteran was exposed to in-service noise. Because the Veteran reported that he experienced tinnitus initially in-service in 1943, the Board remanded the matter for a VA examination and opinion. Further review of the claims files, both paper and electronic, also reveals that the entirety of evidence related to the Veteran's tinnitus claim includes four items. First, in March 2009, the Veteran underwent clinical examination in a VA audiology clinic, the report of which is in the Veteran's electronic claims file. At this time it was noted by the audiologist that no tinnitus was reported. In June 2009, the Veteran filed this claim, wherein he reported experiencing tinnitus since his time in service in 1943, although he confirmed that he was not treated. In a March 2010 statement, however, the Veteran indicated, "[a]s to tinnitus, I have no idea what that is." And most recently, in October 2012, the VA examiner answered "no" to whether the Veteran reports recurrent tinnitus and made only one other statement, "Veteran does not claim tinnitus." Thus, the evidence of record shows (1) no tinnitus, (2) a report of tinnitus since 1943, and (3) a question on the part of the Veteran as to what tinnitus is. Unfortunately, the VA examiner did not shed light as to the symptoms experienced by the Veteran and whether they may be deemed tinnitus. The VA examiner's statement that the Veteran does not claim tinnitus is also inconsistent with the record. Moreover, the VA examiner failed to note the Veteran's claim that he experienced tinnitus in service, or note the finding in the March 2009 VA treatment record. There is essentially no discussion of any relevant evidence in the VA examination report and only a notation as to the Veteran's lack of a report of tinnitus. In that the Veteran has indeed indicated that he is unaware of what the word "tinnitus" means, it was incumbent upon the examiner to further discuss the disorder in terms of symptoms. From the report, it is unclear as to whether the examiner did any more than ask the Veteran, "Do you have tinnitus?" This would be an unanswerable question when posed to someone who does not know what tinnitus is. Thus, the Board finds the VA examination report to be insufficient for analyzing this claim and, for this reason, it does not substantially comply with the August 2012 remand directives. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand for corrective action is required. Id. On remand, a new examination should be obtained. The VA examiner should seek information from the Veteran as to the symptoms he experiences and make a determination as to whether these symptoms render tinnitus to be an appropriate diagnosis. Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking, and it is usually subjective in type. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1956 (31st ed. 2007). If tinnitus is diagnosed, the examiner should then opine as to whether it was caused by the in-service noise exposure. Moreover, the Board notes that since the August 2012 remand, service connection for bilateral sensorineural hearing loss was granted as due to in-service noise exposure. Thus, the examiner should also make a determination as to whether any current tinnitus is causally connected to the sensorineural hearing loss. Finally, the Board notes that the Veteran's representative submitted a statement in March 2012 suggesting that the issue of entitlement to service connection for a knee disability was raised by the Veteran's March 2010 statement and August 2010 substantive appeal, such that this issue should be referred to the RO for appropriate consideration. The Board recognizes these two statements, however, the Board also notes the RO's August 2010 letter to the Veteran's representative asking for clarification as to whether the Veteran was seeking to appeal the issue of service connection for the knee. The representative clearly responded in September 2010 stating, "[t]he only issues [the Veteran] would like to further appeal are bilateral hearing loss and tinnitus." Thus, the claim for service connection for a knee disability is not in need of referral to the RO. Moreover, the Board again notes that the issue related to hearing loss was granted following the Board's prior remand; thus, it need not be further adjudicated. Accordingly, the claim for service connection for tinnitus, alone, is remanded for the following action: 1. The Veteran must be afforded an appropriate VA examination to determine whether the Veteran experiences ringing, buzzing, roaring, clicking or any other symptoms of tinnitus, such that a diagnosis of tinnitus is appropriate. Should tinnitus be diagnosed, the examiner should determine if any tinnitus found is related to the Veteran's military service or to his service-connected sensorineural hearing loss. 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. All pertinent symptomatology and findings must be reported in detail. After a review of the examination findings, the entire evidence of record, and with consideration of the Veteran's statements, to include his July 2009 claim that he experienced tinnitus in 1943 in service, the examiner must render an opinion as to whether any diagnosed tinnitus is related to the Veteran's military service, or to any incident therein. The Veteran's military occupational specialties, his history of in-service and post-service noise exposure, and any other pertinent clinical findings of record, must be taken into account. The examiner must also determine whether any current tinnitus is a symptom associated with the service-connected sensorineural hearing loss. A complete rationale for all opinions must be provided. If the examiner cannot provide the 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. The examination report must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If any claim on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the claim must be returned to the Board for further appellate review. 4. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. Accordingly, this claim must be afforded expeditious treatment. 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).