Citation Nr: 1315166 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-29 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1940 to July 1945. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A personal hearing before a traveling member of the Board was scheduled for the Veteran at the RO on February 28, 2013; however, the Veteran notified VA on February 12, 2013 that he wished to withdraw his request for a personal hearing. See 38 C.F.R. § 20.702(e) (2013). 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 The Veteran underwent a VA audiologic examination in December 2010 and a VA tinnitus evaluation in June 2011 by the same audiologist. However, the audiologist noted that because there was no documentation of specific ear/frequency levels at the time of release from service and because the Veteran reported a significant history of significant noise exposure both during and after service, it was not possible to determine if the etiology of the hearing loss and tinnitus are related to military noise exposure without resorting to mere speculation. In years past, these types of noncommittal opinions amounted to "nonevidence," neither for nor against the claim. See Perman v. Brown, 5 Vet. App. 237, 241 (1993). See also, generally, Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Recent case law, however, suggests that caution must be exercised when referring to medical reports and opinions as "nonevidence" and that, instead, the probative value or weight (competency and credibility) of the evidence should be assessed. Specifically, in Hogan v. Peake, 544 F.3d 1295 (2008) and Fagan v. Shinseki, 573 F.3d 1282 (2009), the Federal Circuit stated that classifying a medical report and opinion as nonevidence is "troubling." More recently, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (Court) held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment because they actually were unable to provide a definitive opinion because the limits of medical knowledge had been exhausted or, instead, for example, because they needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability but also held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data were fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Board finds that the December 2010 and June 2011 VA opinions do not provide sufficient discussion of the evidence, including evidence in service and after discharge, upon which to base a decision. Therefore, additional development is warranted in this case to determine whether the Veteran's current bilateral hearing loss and tinnitus are causally related to service noise exposure; and, if the examiner again determines that he/she cannot answer this question without resorting to speculation, the examiner must explain the basis of this inability to provide this requested opinion and identify precisely what facts could not be determined. In particular, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2012) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Thus, another VA medical opinion is required in this case relative to the etiology of the Veteran's bilateral hearing loss and bilateral tinnitus disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO will ask the Veteran to provide the names and addresses, as well as the dates of treatment, of all health care providers, both VA and non-VA, who have seen or treated him for hearing loss or tinnitus since January 2013, which is the date of the most recent treatment records on file in Virtual VA. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Following completion of the above, the AMC/RO must arrange for the examiner that provided the opinions in December 2010 and June 2011, or an appropriate substitute, to provide an addendum to the previous opinions. The claims files 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 files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the relevant evidence in the claims files, including both the Veteran's service treatment records and the post-service evidence, the examiner is asked to opine whether it is at least as likely as not that the Veteran's current bilateral hearing loss disability and tinnitus are causally related to his military service. The VA examiner is requested to provide a thorough rationale for all opinions provided. The examiner is requested to note that even if Veteran's service treatment records do not contain evidence of tinnitus or hearing loss disability for VA purposes, pursuant to 38 C.F.R. § 3.385 (2012), in service or at service separation, service connection for tinnitus and/or hearing loss disability can still be established if medical evidence shows that current tinnitus and/or hearing loss disability are actually due to incidents during service, to include acoustic trauma. If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why a definitive opinion cannot be provided. In particular, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted and must discuss why additional testing or information would not lead to a conclusive opinion. If it is determined that a current examination is needed in order to provide the requested opinion, a VA audiological examination must be conducted. All pertinent symptomatology and findings must be reported in detail. The AMC/RO will notify the Veteran of his responsibility to report for any examination scheduled and the consequences for failure to report for an examination without good cause. See 38 C.F.R. §§ 3.158, 3.655 (2012). It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Thereafter, the AMC/RO must readjudicate the issues of entitlement to service connection for bilateral hearing loss and for bilateral tinnitus based on all of the evidence of record. If either of the benefits sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and must be afforded an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).