Citation Nr: 1315243 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-10 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to May 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2010, the Veteran and his spouse testified at a hearing before the undersigned at the RO. A hearing transcript is associated with the claims file. In a December 2010, the Board denied entitlement to service connection for tinnitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court endorsed a Joint Motion for Remand (JMR) vacating the Board's denial of the Veteran's tinnitus claim and remanding the matter for further proceedings. In November 2011 and November 2012, the Board remanded the claim to the RO for further evidentiary development. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In November 2012, the Board remanded the issue for a medical opinion with a complete rationale on whether the Veteran's established tinnitus was caused by or is aggravated by the Veteran's service-connected hearing loss disability. Subsequently, a January 2013 VA medical opinion was obtained, and the examiner opined that it was less likely as not that tinnitus was caused by service or secondary to service-connected hearing loss. The audiologist provided a thoughtful explanation of her opinion based on her review of the claims file, the Veteran's clinical history, and her medical knowledge. However, this medical opinion does not address the theory of entitlement based on aggravation of a nonservice-connected disability by a service-connected disability, in this case hearing loss. Therefore, the medical opinion is incomplete and must be returned to the examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). 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). Accordingly, the case is REMANDED for the following actions: (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. Return the VA medical opinion dated in January 2013 to the audiologist who prepared that opinion. The claims file and 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 audiologist. Taking all the evidence into account, the audiologist should opine on whether there is it as likely as not (50 percent or greater probability) that the Veteran's current tinnitus was aggravated (permanently worsened) by his service-connected hearing loss disability. If the she determines that the Veteran's tinnitus is aggravated by the service-connected hearing loss disability, then she should report the baseline level of severity of the nonservice-connected tinnitus prior to the onset of aggravation. If some of the increase in severity of the nonservice-connected tinnitus is due to the natural progress of the disease, the audiologist should indicate the degree of such increase in severity due to the natural progression of the disease. A complete rationale for all opinions is required. The audiologist 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 a statement as to 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 (2010). The report must be typed. If the January 2013 audiologist is not available, the claims file and a copy of any pertinent evidence located in Virtual VA that is not in the claims file should be forwarded to another appropriate VA audiologist, who should be instructed to provide the required opinion with supporting reasons. Another examination of the Veteran should only be performed if determined to be necessary by the person providing the opinion. 2. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ LANA K. JENG Acting 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).