Citation Nr: 1318871 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-28 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Mavis W. Kennedy, Attorney ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to February 1946. This case 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 St. Louis, Missouri. In May 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the May 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for bilateral tinnitus, to include as secondary to a service-connected hearing loss disability. The Veteran was afforded a VA examination in March 2013 with instructions to the examiner to answer the following questions. a) Whether it is at least as likely as not that the Veteran's tinnitus is related to service, and b) Whether it is at least as likely as not that the Veteran's tinnitus is proximately due to, or alternatively, permanently worsened (aggravated) by his service-connected hearing loss disability. The examiner instead checked a box on the examination report indicating that the Veteran did not report recurrent tinnitus. However, the Board notes that the Veteran has been previously diagnosed with tinnitus by both VA examiners and private treatment providers and has credibly testified that he suffers from ringing in his ears. In this regard, service connection cannot be granted in the absence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the March 2013 examiner's finding is contrary to other evidence of record and no explanation for this discrepancy is provided. Furthermore, it appears that the examiner did not review the Veteran's claims folder or any other evidence in this case. Accordingly, the Board finds that the March 2013 VA examination is inadequate and the case should be returned to that examiner or other suitably qualified examiner for a supplemental opinion. 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 should refer the Veteran's case to the March 2013 VA examiner for a supplemental opinion to determine the etiology of the Veteran's tinnitus. If that examiner is unavailable, then the case should be forwarded to another suitably qualified examiner for a supplemental opinion. After reviewing the record, the examiner should provide the following opinions: a) Whether it is at least as likely as not that the Veteran has tinnitus that is related to service, and b) Whether it is at least as likely as not that the Veteran's tinnitus is proximately due to, or alternatively, permanently worsened (aggravated) by his service-connected hearing loss disability. c). If the examiner finds that a diagnosis of tinnitus is not warranted, the examiner must provide the basis for this determination, and discuss the prior diagnoses of record of tinnitus by both VA examiners and private treatment providers. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. The examiner should note that the Veteran was competent to state in September 2004 (and presently) that his tinnitus worsened a year and a half prior to his August 2004 VA examination, not that it began at that time. The examiner should also note that the United States Court of Appeals for Veterans Claims has held that the requirement of a current disability is satisfied when the claimant has a disability at the time the claim for disability compensation is filed or during the pendency of the claim, even though the disability may have resolved prior to VA's adjudication of the claim. See McClain, supra. 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 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. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claims folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ S. L. Kennedy 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).