Citation Nr: 1322385 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-00 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 through May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a Board hearing in March 2012, and notice to that effect was mailed to the Veteran's known address in January 2012. The Veteran failed to appear for the scheduled hearing and no good cause was given for such failure to appeal. 38 C.F.R. § 20.702(d). The VA has not received any request from the Veteran or his representative to schedule a new hearing, and his hearing request is deemed withdrawn. In August 2012, the Board remanded the case for additional development. It now returns for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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 contends that he is entitled to service connection for bilateral hearing loss and tinnitus due to noise exposure during military service. Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA audiological examination in June 2008 to determine the nature and etiology of his hearing loss and tinnitus. The record reflects the examiner opined that the Veteran's hearing loss and tinnitus were "less likely" to have been related to in-service noise exposure. In support of this opinion, the examiner noted without elaboration that reports from the Veteran's pre-induction physical examination and separation examination both indicated that his hearing loss was within normal limits. The Board previously remanded the case in October 2012 for a new audiological examination. In addition, to performing the examination, the examiner was asked to provide a specific explanation as to why normal audiological findings in service are/are not significant in determining whether current hearing loss disability is related to noise exposure during service. The examiner was requested to include the medical basis for the conclusions reached. The Veteran underwent a new VA audiological examination in September 2012. A review of the examination report reflects that the examiner opined that the Veteran's hearing loss was not related to service and that the examiner could not opine without resort to speculation whether tinnitus was related to service. The examiner concluded that based on the Veteran's entrance and separation hearing examinations, there was no change observed in the Veteran's hearing, and that the Veteran could not recall when the tinnitus began. However, the examiner did not explain why normal hearing during service is/is not significant in rendering the opinion regarding the relationship between the Veteran's claimed hearing loss and noise exposure in service, nor did the examiner adequately explain why an onset date was necessary to provide an opinion on tinnitus. The Board notes that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, the lack of evidence of hearing loss or tinnitus in service is not fatal to the claim for service connection. Accordingly, remand for an addendum to the opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the file to the VA audiologist who provided the September 2012 opinion to prepare an addendum. The examiner should be advised that simply because hearing loss and tinnitus were not shown in service does not preclude a finding of service connection if the current conditions are etiologically related to service. Following review of the claims file, the examiner should clarify her opinion as follows: a. Is it as likely as not (50 percent probability or greater) that hearing loss manifested after his discharge from service is related to the noise exposure during service? Please explain why or why not. In other words, please explain why the normal audiological findings in service indicate that the Veteran's current hearing loss is not related to his extensive noise exposure in service as a light infantry crewman. b. Is it as likely as not (50 percent probability or greater) that tinnitus first manifested after his discharge from service is related to the noise exposure during service? Why or why not? In other words, please explain why the Veteran's inability to identify when tinnitus began renders the examiner unable to determine whether it is related to noise exposure during service. If that examiner is unavailable, the claims file should be sent to another VA examiner with appropriate expertise, to provide the requested addendum. If a new examination is deemed necessary, one should be scheduled. 2. The RO/AMC should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant 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). _________________________________________________ K. A. BANFIELD 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).