Citation Nr: 1324250 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-00 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a respiratory disability (originally claimed as interstitial lung disease), to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1967 to December 1968, including service in the Republic of Vietnam (Vietnam) during the Vietnam era (defined as January 9, 1962 to May 7, 1975). This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This case was previously been before the Board in July 2012, when the Board remanded the Veteran's claims in order to obtain additional medical records and provide the Veteran with additional examinations. The Veteran was provided with additional medical examinations, and additional records were obtained. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board finds that there has been effective compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) The issues of entitlement to service connection for posttraumatic stress disorder, jungle rot of both feet and chloracne have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A bilateral hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current bilateral hearing loss disability is related to active military service, to include exposure to herbicides. 2. A respiratory disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current respiratory disability is related to active military service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by active military service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated November 2005 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed his claim prior to the Court's 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the November 2005 VCAA letter. Instead, in the December 2008 Statement of the Case, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date. Additionally, since the time of the December 2008 Dingess notice, the Veteran has been provided with several readjudications of his claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records, VA medical treatment records, and private medical records, have been obtained, to the extent available. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA respiratory examination in January 2013 and an audiological examination in April 2013. These examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. These opinions are therefore adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative have argued that these examination are inadequate. On his Form 9, Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge. In August 2011, prior to such hearing, the Veteran withdrew his request for such hearing. The Veteran's hearing request has therefore been deemed withdrawn. See 38 C.F.R. § 20.704 (2012). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection for a Bilateral Hearing Loss Disability In general, service connection may be granted for disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for impaired hearing is established only when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA considers impaired hearing to be a disability when (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or; (b) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or; (c) speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability). Furthermore, as a chronic disease set forth in 38 C.F.R. § 3.309, service connection for bilateral hearing loss may be established based on a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b). Regarding the first Hickson element, the Veteran's April 2013 examination report demonstrates that the Veteran has a bilateral hearing loss disability for VA compensation purposes. The first Hickson element, evidence of a current disability, is accordingly met with respect to the Veteran's bilateral hearing loss. With respect to the second Hickson element, in-service disease or injury, the Veteran is competent to testify as to his own observable symptomatology and in-service experiences. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the Veteran's assertions credible that he served in close proximity to loud noise while in service. This is consistent with his military occupational specialty Field Artillery Crewman. Accordingly, the second Hickson element, in-service injury, is satisfied. With respect to the third Hickson element, medical evidence of nexus, the Veteran received a VA examination in April 2013, at which time the examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of an event in military service. As a rationale for this opinion, the examiner noted that the Veteran's audiological examination revealed mild to moderately severe sensorineural loss in the right ear and a mild to severe sensorineural loss in the left ear. The examiner noted the Veteran's contentions that he was exposed to noise in the military, including exposure to artillery guns with no hearing protection devices. The Veteran denied pre- and post-military noise exposure, either occupational or recreational. The examiner noted that the Veteran's entrance examination demonstrated a mild hearing loss component in the left ear at 4000 Hertz, but such loss resolved at the Veteran's exit examination, and both ears tested within normal limits at service separation. The examiner observed that the Veteran's audiological configuration was atypical for a purely noise-induced hearing loss because there was excessive low- and mid-frequency involvement. Due to the exit audiological examination documenting hearing within normal limits at exit, and the audiological findings that were inconsistent with noise-induced losses, the examiner concluded that it was less likely than not that the Veteran's bilateral hearing loss was due to military noise exposure. To the extent that the Veteran himself believes that his bilateral hearing loss is related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as ringing in the ears). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with a VA examination based on the competency of the Veteran's observations. With that said, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of a bilateral hearing loss disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record to find any suggestion that the Veteran's condition is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's condition and his military service, with greater probative weight than the Veteran's lay opinion. To the extent that the Veteran contends that his bilateral hearing loss disability has existed since service, he has not presented supporting medical evidence. See Voerth v. West, 13 Vet. App. 117, 120-21 (1999) (noting that there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). While the Veteran has generally contended that he first experienced hearing loss in service, it is unclear whether he contends that he has experienced hearing loss continually since service. The Veteran first asserted that he had bilateral hearing loss at the time of his July 2005 claim, approximately 37 years after separation from active duty service. The record contains no evidence of medical treatment for a bilateral hearing loss disability. Despite the Veteran's current contentions that his hearing loss disability has persisted since service, the Veteran's absence of complaints of sensorineural hearing loss both in-service and for years after his separation weighs against a finding of continuity. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record"); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board when it found that the veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition.) Furthermore, without evidence of symptomatology suggesting a hearing loss disability within a year after service, presumptive service connection is similarly unavailable. While the Veteran is competent to report symptoms of hearing loss since his active military service, the Board finds that given the totality of the evidence of record, the Veteran's statements regarding an onset of symptoms shortly after service are not supported by the evidence of record. The contemporaneous record regarding hearing related matters discussed above show that, rather than experiencing hearing loss since service, the Veteran did not complain of hearing related problems until decades after service. Furthermore, a VA examiner, after review of the claims folder and examination of the Veteran, could not conclude that the Veteran's current hearing loss was likely related to active duty military service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's bilateral hearing loss is not related to his military service. Accordingly, the third Hickson element has not been satisfied, and the benefit sought on appeal is denied. Service Connection for a Respiratory Disability As discussed above, for certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). The Board notes, however, that the Veteran's respiratory disorder is not among the chronic diseases set forth in 38 C.F.R. § 3.309, and therefore service connection cannot be established based solely on a continuity of symptomatology. See Walker. A veteran who had active military service in Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). The Board notes that the Veteran has not claimed service connection for a disorder entitled to presumptive service connection. See 39 C.F.R. § 3.309(e) (2012). While the Board notes that respiratory cancers (that is, cancer of the lung, bronchus, larynx, or trachea) are entitled to presumptive service connection, the Veteran had not been diagnosed with a respiratory cancer. He does not contend otherwise. Therefore, despite serving in Vietnam during the Vietnam era, the Veteran's respiratory disability is not entitled to presumptive service connection. Notwithstanding the foregoing, the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), states that even when presumptive service connection is not appropriate, a veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Though Combee concerns radiation exposure rather than herbicide exposure, it applies by extension to cases, such as this one, that involve herbicide exposure. See McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board will therefore analyze the possibility of entitlement to service connection for a respiratory condition on a direct basis. With respect to the first Hickson element, there must be competent evidence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (current disability means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). The Veteran underwent a VA examination in January 2013, at which time the examiner noted that the Veteran had experienced acute bronchiolitis in 2007. Though the weight of the evidence of record indicates that such condition has since resolved, under McClain, the Board finds that the Veteran demonstrated a respiratory disability during the pendency of the claim. Accordingly, the first Hickson element is satisfied. With respect to the second Hickson element, in-service disease or injury, the Veteran's in-service exposure to herbicides has been presumed. Accordingly, the second Hickson element, in-service injury, is satisfied. With respect to the third Hickson element, medical evidence of nexus, a June 2007 VA outpatient report indicates that the Veteran was diagnosed, in part, with bronchiolitis, which the examining physician attributed to a past inhalation injury, to include smoke and fire from an accident years ago, or exposure to Agent Orange in Vietnam. The clinician offered no rationale for this conclusion. The Veteran was provided with a VA examination in January 2013. The examiner reviewed the Veteran's claims file, including the 2007 diagnosis of acute bronchiolitis. The examiner noted that the June 2007 clinical note was associated with an emergency room visit for chest pressure. A chest CT examination performed at that time was negative. The examiner noted that the Veteran had an extensive workup in 2007, including bronchoscopy, to determine whether the chest pressure was pulmonary in nature. This testing did not reveal a pulmonary diagnosis. The examiner noted also that the Veteran had unrelated diagnoses of sleep apnea and past pulmonary hypertension. The examiner noted that a chest x-ray performed in January 2013 revealed normal lung fields without discrete infiltrate, nodular density, or pleural fluid. The examiner also reviewed the results of the Veteran's pulmonary function testing from January 2013, which the examiner found did not support a finding of a chronic pulmonary condition. The examiner noted that notwithstanding the Veteran's 2007 diagnosis with bronchiolitis, the Veteran had no current primary pulmonary or respiratory diagnosis other than sleep apnea. The examiner noted that bronchiolitis is an acute condition, and this condition has resolved. The examiner found that bronchiolitis would not likely occur as a result of exposure to an inhalant 39 years prior. To the extent that the Veteran himself believes that his respiratory disability is related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as shortness of breath). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with a VA examination based on the competency of the Veteran's observations. With that said, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of a respiratory disability, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record to find any suggestion that the Veteran's condition is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's condition and his military service, with greater probative weight than the Veteran's lay opinion. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's respiratory disability is not related to his military service. Accordingly, the third Hickson element has not been satisfied, and the benefit sought on appeal is denied. ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for a respiratory disability, to include as due to herbicide exposure, is denied. REMAND Unfortunately, an additional remand of the Veteran's claim for service connection for tinnitus is warranted. Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case. Once VA provides an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Daves v. Nicholson, 21 Vet. App. 46 (2007); cf. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court has held that "a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Court has also indicated that in evaluating the medical opinion evidence, the Board is to consider whether (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was provided with a VA examination of his tinnitus in April 2013. The etiological opinion of the examiner is unclear. As noted above, the April 2013 examiner found it to be less likely than not that the Veteran's bilateral hearing loss disability is related to his military service. The examiner indicated that the Veteran's tinnitus was at least as likely as not a symptom associated with the Veteran's bilateral hearing loss disability, because tinnitus is known to be a symptom associated with hearing loss. With this opinion, the examiner appears to suggest that the Veteran's tinnitus is not likely related to the Veteran's military service, because the tinnitus is instead a symptom of the Veteran's non-service connected bilateral hearing loss disability. Additionally, however, the examiner indicated that it was at least as likely as not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran reported an onset of tinnitus during his service, and the examiner stated that the Veteran had a bilateral sensorineural hearing loss consistent with noise-induced tinnitus. Accordingly, with opinions that suggest both that the Veteran's tinnitus is and is not related to service, an addendum opinion is required to clarify the examiner's nexus opinion. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the examiner who conducted the April 2013 audiological examination. If the April 2013 examiner is no longer available, a new examination should be conducted. The April 2013 VA examiner may also request re-examination of the Veteran. The examiner should once again be requested to opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's tinnitus had an onset in service or is otherwise related to service. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 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 2002 & Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs