Citation Nr: 1319034 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-11 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to February 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his March 2007 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. In August 2009, the Veteran withdrew his request for such hearing. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). The Board notes that the Veteran filed a timely appeal with regard to a denial of entitlement to service connection for bilateral hearing loss, also in the July 2005 rating decision. However, in an October 2009 submission, the Veteran withdrew that issue from his appeal. Therefore, the Board does not have jurisdiction over that issue at this time. 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 The Board's review of the record indicates that a remand is necessary so that the Veteran may be provided a VA examination. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's claim that he has tinnitus is evidence of a current disability. Moreover, service treatment records, in particular a June 1992 audiogram, indicate that the Veteran was routinely exposed to hazardous noise. Finally, the Veteran in filing his claim has asserted that he has tinnitus that is a result of military service. In light of these facts, the Board finds that the criteria for scheduling a VA examination have been met. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to assess the etiology of his tinnitus. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's tinnitus is a result of in-service noise exposure or is otherwise a result of his military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).