Citation Nr: 1324324 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-14 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from November 1971 to February 1980. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Specifically, pursuant to VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), another medical nexus opinion is needed to address whether the Veteran's tinnitus was caused or aggravated by his service-connected bilateral hearing loss disability, so in this way secondarily related to his military service. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In an August 2010 opinion, the examiner simply stated the Veteran's tinnitus was not caused by his hearing loss because "[a person] can have hearing loss with or without tinnitus and . . . can have tinnitus with or without hearing loss." The examiner further stated that "[o]ne does not cause the other." However, VA recognizes that tinnitus may be related to hearing loss, either as a distinct disorder secondary to hearing loss or as a symptom of hearing loss, and that both can share the same etiology. See Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 4, Sections B.12.b, e, and f. In his September 2010 Notice of Disagreement (NOD), the Veteran pointed out that the Merck Manual, Section 7, Ch. 85, Inner Ear, states that "high frequency tinnitus usually accompanies [noise-induced, i.e., sensorineural] hearing loss." Accordingly, the VA examiner's blanket assertion that tinnitus is not caused by hearing loss does not accord with VA's established recognition of the possibility that tinnitus may be a symptom of or secondary to hearing loss. Moreover, the VA examiner's opinion does not address the alternative issue of aggravation. See Allen, 7 Vet. App. at 449 (finding that an examiner's opinion stating there was "no etiological" relationship between a service-connected disability and the nonservice-connected disability being claimed did not encompass the issue of aggravation). Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection disability (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). Thus, the opinion previously obtained is inadequate for making an informed decision on this claim. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate, versus inadequate, when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one); 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 the examination or opinion is adequate). If the opinion is inadequate, it is incumbent on the Board to correct it. 38 C.F.R. § 4.2. So a new VA opinion must be provided specifically addressing whether the Veteran's tinnitus was caused or aggravated by his service-connected bilateral hearing loss disability, based on the specific facts of this particular case (not just, instead, a general conclusive statement, so with sufficient explanatory rationale). See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2012). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). This addendum opinion is critically important because medical evidence is generally, though not always, required to associate the claimed condition with the service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). The RO/AMC should also take this opportunity to send the Veteran a notification letter under the VCAA informing him of the requirements for establishing his entitlement to service connection for this alleged condition (tinnitus) on a secondary basis. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA notification letter informing him of the requirements for establishing his entitlement to service connection for tinnitus as secondary to a service-connected disability - in this instance his bilateral hearing loss. Give him opportunity to submit additional evidence and/or argument in response to this notice, including showing the required correlation between these conditions (whether by causation or aggravation). 2. After giving him this opportunity, obtain a supplemental opinion from a VA audiologist or otolaryngologist (ear, nose & throat (ENT) specialist) concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected bilateral hearing loss either caused or is aggravating his tinnitus. The entire claims file and a copy of this REMAND must be made available to the examiner rendering this opinion, and it must be noted in the report that the evidence in the claims file has been reviewed. If, as the prior August 2010 VA examiner concluded, a causal relationship is not found, this new examiner still must specifically also determine whether the Veteran's hearing loss alternatively has aggravated (meaning permanently worsened) his tinnitus. Phrases such as "not due to" and "not related to" are generally insufficient to address this additional issue of aggravation. Importantly, VA recognizes that tinnitus may be related to hearing loss or a symptom of it, and thus an opinion conclusively stating as a medical principle that the two conditions can never be etiologically related will be returned as inadequate. That said, the term "as likely as not" does not mean merely "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide explanatory rationale for his/her opinion, if necessary citing to specific evidence in the file supporting it. 3. Ensure the opinion is responsive to the questions posed, both as concerning causation and aggravation and with sufficient explanatory rationale. If not, take corrective action to avoid another remand of this claim. 38 C.F.R. § 4.2 (2012); See Stegall v. West, 11 Vet. App. 268 (1998) (A Veteran is entitled to compliance with remand orders, and the Board errs as a matter of law in failing to ensure this compliance). 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).