Citation Nr: 1325267 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-12 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from November 1969 to November 1973. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for tinnitus. In April 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. 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 seeks service connection for tinnitus, which he contends is a result of acoustic trauma in service. He underwent a VA examination in October 2007, at which time it was noted that he reported one rifle shot within a few inches of his right ear and also occasional Howitzer fire without hearing protection. He also reported civilian noise exposure from weapons training with pistols, shotguns, and rifles yearly. He indicated that he had onset of tinnitus 20 to 30 years ago, worse over the past 10 years. The diagnosis was constant bilateral subjective tinnitus. In providing an etiology opinion the examiner determined that he could not resolve the etiology of the Veteran's tinnitus without resort to mere speculation. The examiner noted that the Veteran's tinnitus was consistent with his hearing loss (which the examiner attributed to the Veteran's acoustic trauma in service) and was most likely due to the same etiology. However, because the hearing loss and tinnitus had progressed in recent years, there was evidence of other possible etiologies, and the Veteran did not report onset or aggravation in service, the examiner felt that he could not resolve the issue of tinnitus without resort to mere speculation. The examiner noted that the likely/possible non-military etiologies were diabetes, and his usage of ototoxic medication, as well as his civilian occupation and recreational noise exposure. The RO granted service connection for hearing loss, but denied service connection for tinnitus, based on the October 2007 VA medical opinion. The Veteran appealed the RO's determination arguing that since the RO had conceded noise exposure in service and granted service connection for hearing loss, it was arbitrary for the RO to deny service connection for tinnitus. The Veteran also took issue with the examiner's opinion about not being able to resolve the matter without resort to speculation. He acknowledged that he had civilian noise exposure but that it was nothing like the type of noise exposure he experienced in the military. Specifically on his VA Form 9 he stated that in the military he was exposed to acoustic trauma every day without hearing protection including exposure to live fire simulation during training, spending two weeks qualifying with his service rifle, and having his drill instructor yelling in his ear. His MOS also required him to routinely operate diesel powered trucks that towed artillery, troops, and supplies. In addition he was exposed to live fire exercises involving 105mm howitzers. On the other hand he stated that his exposure to noise while working as a civilian for the Department of Corrections involved weapons training that was conducted once a year with appropriate hearing protection. The Veteran testified at the Board hearing in April 2013 that he started having ringing in his ears in service in 1971 and that he first sought treatment for tinnitus in 2001 or 2002. His representative further asserted that the VA examination provided in October 2007 was inadequate because the examiner did not really provide a "yes" or "no" answer. The Veteran's DD Form 214 shows that he served in the US Marine Corps and that his MOS was Motor Vehicle Operator. His personnel records also note that he participated in combat support in operations in the contiguous waters of the Republic of Vietnam. Thus, the Board concedes military noise exposure. The Board also agrees that the VA medical opinion provided is inadequate, mostly because it is confusing. On the one hand the examiner is attributing the Veteran's tinnitus to the same etiology as his hearing loss, which the examiner seems to attribute to military noise exposure; but on the other hand the examiner indicates that he cannot resolve the issue without resort to speculation, as there is evidence of other non-military acoustic trauma and medical factors that might cause tinnitus. Therefore, another medical opinion is warranted with consideration of all relevant factors, including the Veteran's reported history of acoustic trauma and experience of tinnitus since service. Also, the Veteran should be given the opportunity to sign the proper release form for any private treatment he started receiving for his tinnitus in 2001 or 2002. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and sign the proper release form for any private treatment he received for his tinnitus in 2001 or 2002, as noted during his hearing. If the Veteran responds, make reasonable efforts to obtain these records and notify the Veteran of any responses received and what further steps VA will make regarding the claim. 2. Arrangements should be made to obtain any additional VA treatment records at the VAMC in Gainesville, Florida, of the Veteran related to tinnitus dated since January 2007. In addition, a legible copy of the nexus statement from Advanced Hearing Centers of American in Orange Park, Florida, dated in January 2012 should be obtained. 3. After the above development, schedule the Veteran for a VA audiological medical opinion. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure. In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma in service working around artillery fire and loud equipment as a motor vehicle operator, in addition to any statements regarding a continuity of symptomatology since service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the requested opinion has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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. PARAKKAL 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).