Citation Nr: 1314898 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-29 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Veteran testified before the Board in February 2011. A transcript of the hearing is associated with the claims file. In May 2011, the Board denied initial compensable or staged ratings for the service-connected hypertension and bilateral hallux valgus. These decisions are final, and no further question remains for consideration by the Board in connection with them. In the same decision, the Board remanded the claim of service connection for tinnitus. The matter was previously before the Board in May 2011 and remanded for further development and adjudication. As the requested development has not been satisfactorily accomplished, the matter is once again REMANDED. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA will notify the Veteran if further action is required. REMAND As noted in the Introduction, the claim was previously before the Board in May 2011. At that time, the Board determined that additional evidentiary development was necessary. As the remand orders of the Board were not complied with, further remand is mandated. Stegall, supra. The Veteran has filed a claim of entitlement to service connection for tinnitus. He claims that the condition is the result of noise exposure while performing duties as a communications operator and technician with one tour of duty as a drill sergeant. Notably, he claims that he was exposed to high levels of noise from the employment of small arms, grenades, and power generators. During his February 2011 Board hearing, the Veteran further elaborated and testified that he experienced tinnitus when in a room with no ambient noise and not in crowded spaces. He also testified that he needed to keep his television on at night in order to fall asleep. The Board previously determined that the low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006), had been met. Specifically, the Board found that the Veteran was competent to report symptoms of tinnitus (ringing in his ears), service records showed he was exposed to high noise levels from the employment of small arms, grenades, and power generators, and there was some suggestion that there was a relationship between the exposure and his current symptoms. As such, the Board determined that in order to resolve the claim, a Remand was necessary to obtain another VA medical opinion, which was based on full consideration of the Veteran's assertions and which was supported by a clearly stated rationale. 38 C.F.R. § 3.159 (c) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination was scheduled for October 2011. The Veteran failed to appear; however, the Veteran's representative later indicated that the Veteran missed the VA examination as he was working in Kuwait. See January 2013 statement. The Veteran's representative has asked for the examination to be rescheduled. Accordingly, this case must again be remanded to effectuate the evidentiary development necessary to fully and fairly adjudicate the Veteran's claim. The RO is directed to the specific development instructions delineated in the numbered paragraphs herein below and the May 2011 Board Remand is incorporated by reference. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiometric examination. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner provide an evaluation of the Veteran's reported symptoms of tinnitus which were not present in July 2008 and provide an opinion whether any disability is at least as likely as not (50 percent or greater possibility) related to exposure to noise from small arms, grenades, power generators or communications transmissions in service. The audiologist must comment on any contribution from post-service activities and on the impact of the disability, if any, on the Veteran's current occupation and daily activities. 2. Then, review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim for service connection for tinnitus. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless he is notified. The Veteran 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). _________________________________________________ MICHAEL MARTIN 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).