Citation Nr: 1313824 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 06-14 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss for accrued benefits purposes. 2. Entitlement to service connection for tinnitus for accrued benefits purposes. REPRESENTATION Appellant represented by: Gretchen A. Jackson, Attorney ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969, and he died in September 2009 during the pendency of this appeal. The appellant is the Veteran's spouse, substituted as claimant here. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal was subsequently transferred to the RO in Louisville, Kentucky. In September 2008, the Veteran withdrew his request for a Decision Review Officer (DRO) hearing. In April 2009, the Board denied the claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran passed away in August 2009, while the appeal to the Court was pending. In September 2010, the Court granted the appellant's request to substitute for her spouse for the purposes of an accrued benefits claim. In February 2012, the Court issued a Memorandum Decision vacating and remanding the claims. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran, the appellant's deceased husband, served in the U.S. Army from November 1966 to November 1969. The Veteran sought service connection for bilateral hearing loss disability and tinnitus prior to his death, and the appellant now seeks these benefits on an accrued benefits basis. The Veteran argued that his hearing loss disability and tinnitus were related to acoustic trauma in service. Specifically, he stated that, during a combat incident in service, a "rocket-powered grenade ... landed a few feet behind" him, knocking him to the ground. He further stated that this incident left him "deaf for approximately three days," and marked the beginning of his tinnitus symptoms. The Veteran also asserted that he had additional noise exposure in service "from 750 pound bombs dropping nearby" and from qualifying with a variety of guns and grenades. Service entry audiometric testing dated in November 1966 revealed mild bilateral hearing loss. The Veteran's service separation examination dated in October 1969 included recorded audiometric results showing an improvement in hearing to normal bilateral hearing sensitivity, but no audiogram is available in the record to confirm these results. Report of medical history dated in October 1969, signed and dated by the Veteran, reflects that he denied ear trouble, running ears, and hearing loss; also he reported no complaints of tinnitus. In October 1970, the Veteran filed an original VA compensation claim for various physical and mental problems related to an exploding shell in service, but he did not report symptoms of hearing loss or tinnitus at this time. Some 30 years later, in May 2003, VA received from the Veteran a claim for entitlement to service connection for bilateral hearing loss and tinnitus. VA afforded him a VA examination in November 2003. The examiner concluded that the Veteran's hearing loss and tinnitus were mostly likely the result of noise exposure. The examiner stated that the Veteran reported "work[ing] intermittently as a truck driver" and performing "farming and construction work," and described the Veteran's post service work as involving "significant occupational noise." However, the examiner did not state whether her conclusions were based on the Veteran's statements regarding the level of noise present in his post service occupations or were the examiner's own independent conclusions. Based on her determination that the Veteran had significant post service noise exposure and the normal audiometric results recorded on the Veteran's separation examination, the VA examiner concluded that the Veteran's bilateral hearing loss and tinnitus were not related to in-service noise exposure. The Veteran, in a statement in support of claim, disputed the examiner's characterization of his post service occupations as noisy and asserted that he did not actually receive an audiometric examination at separation. In its February 2012 Memorandum Decision, the Court found that the VA audiologist had no expertise as to noise levels involved in the occupations held by the Veteran and, therefore, the medical opinion was essentially inadequate because it was predicated on unsupported conclusions as to the noise levels. As such, the Court held that the Board erred when it relied on this medical opinion and further admonished the Board for its failure to discuss the Veteran's assertion that he did not receive an audiometric examination at service separation. In view of the above, the Board finds that remand for an adequate medical opinion by a physician of appropriate expertise is necessary in this case. VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). VA is not required to provide a medical examination in all cases; however, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, ... he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet .App. 46, 51-52 (2007). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 102, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); Green, 1 Vet.App. at 124. When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet.App at 124-25. Thus, "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2012). Here, as indicated above, the medical opinion of record is inadequate. Therefore, the Board must obtain an adequate opinion in this matter. It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). It is noted that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002) (emphasis added). In this case, hearing loss was noted at the time of service examination, acceptance, and enrollment. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain a medical opinion from an appropriate physician. The claims files along with a copy of any pertinent evidence located in Virtual VA that is not in the claims file should be made available to and reviewed by the physician. A copy of Board's remand decision here should be made available to and reviewed by the physician to ensure that he understands why the audiological opinion previously rendered was inadequate. In this regard, the physician should accept that the Veteran had hearing loss on service entry and that he is credible in his report of in-service noise exposure unless otherwise indicated by the record or medical findings. The physician should provide an opinion addressing the following question: Is it as least as likely as not (50 percent probability or greater) that the Veteran's military service, to include the in-service grenade explosion incident and other military noise events reported by the Veteran, aggravated his preexisting hearing loss without regard to his occupational or recreational noise exposure post service? Aggravation is defined as a permanent worsening of a disability beyond that due to the natural disease process as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A complete rationale for all opinions is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Then, the RO should review the medical opinion and rationale to ensure that all the requested information and an adequate supporting rationale is provided, or return for such. 3. Then, after ensuring any other necessary development has been completed, the RO should readjudicate the claims. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her attorney should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ DAVID L. WIGHT 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).