Citation Nr: 1325579 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-36 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In an August 2011 decision, the Board in pertinent part, denied the Veteran's claim of entitlement to service connection for tinnitus. The Veteran then appealed such issue to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 Order, the Court granted a joint motion for partial remand, vacating the Board's August 2011 decision that denied entitlement to service connection for tinnitus, and remanding the issue to the Board. 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 Veteran contends that his current tinnitus has its onset during active service due to acoustic trauma, as a result of his military occupational specialty, an indirect fire crewman. In a February 2006 statement, the Veteran reported that he fired mortars during service but was not provided ear plugs. In his May 2006 statement, he reported that he always felt pain in the ears while firing mortars, but never complained. Accordingly, the Board concedes the Veteran's acoustic trauma during service, as it is consistent with his military occupational specialty. The Veteran's September 1965 induction physical examination contains the Veteran's complaint of ear, nose, or throat trouble. The report of medical examination demonstrates right ear hearing loss at 4000 Hertz, although the examiner did not diagnose right ear hearing loss. Thus, based upon the record, the Board finds that the Veteran's complaint of ear, nose, or throat trouble pertained to his right ear hearing loss. The report of medical examination is negative for a diagnosis of tinnitus; thus, the Veteran is presumed sound upon entry into service. See 38 U.S.C.A. § 1111 (West 2002). The Veteran's service treatment records and August 1967 separation physical examination are negative for complaints or a diagnosis of tinnitus. Post-service treatment records from the Veteran's service in the Reserve Component include an August 1985 report of medical examination, which is negative for a diagnosis of tinnitus. A report of medical history is not associated with the claims file. A December 1989 examination report is negative for complaints or a diagnosis of tinnitus. A December 1991 examination report contains the Veteran's complaints of ear, nose, or throat trouble. The report of medical examination is negative for a diagnosis of tinnitus. A February 2006 private audiological evaluation indicates a diagnosis of tinnitus. In a subsequent February 2006 questionnaire, R.C., the Veteran's private audiologist reported that he did not review the Veteran's treatment records; however, it was noted that the tinnitus was related to service because there was a high incidence of tinnitus and noise exposure. An April 2006 VA outpatient treatment record notes the Veteran's complaint of constant bilateral tinnitus, as well as a history of noise exposure during service. A January 2007 VA examination report notes the Veteran's complaint of bilateral constant tinnitus that had been present since discharge from active service. The report also notes the Veteran's report of firing mortar rounds during active service. The examiner reviewed the claims file and noted that the Veteran's service treatment records were negative for complaints or diagnoses of tinnitus. The examiner did not offer an opinion as to the etiology of the Veteran's current tinnitus. In an April 2013 VA opinion, L.K., Au.D. CCC-A. F-AAA. noted that she reviewed the Veteran's service treatment records. L.K. opined that the Veteran's reported tinnitus was less likely than not related to noise exposure during active service. In providing this opinion, L.K. noted that the Veteran's September 1965 induction examination, which shows the Veteran reported ear, nose, and throat trouble and reflected a pre-existing condition upon entrance into service. L.K. further noted that a December 1965 induction assessment confirmed mild right ear hearing loss at 4000 Hertz, thus confirming pre-existing acoustic dysfunction unrelated to service. L.K. noted the August 1967 separation examination, which shows normal hearing bilaterally, no significant threshold shift, as well as improvement of the Veteran's right ear hearing. The medical opinions of record addressing the etiology of the Veteran's current tinnitus are inadequate for rating purposes. The opinion offered by the private audiologist in February 2006 is merely a conclusory statement without a rationale that considers the Veteran's medical history. Indeed, the private audiologist stated that he did not review the Veteran's treatment records. The opinion provided by the VA audiologist in April 2013 is likewise inadequate, as the rationale offered was based upon an inaccurate assessment of the record, namely, that the Veteran had a pre-existing condition upon induction into service. As above, the Veteran is presumed sound upon induction, as the September 1965 induction examination report is negative for a diagnosis of tinnitus. Moreover, the VA audiologist noted the Veteran's audiometric findings during service, however, failed to discuss the service treatment records with respect to the Veteran's claim of tinnitus, as per the Board's directive. Once VA undertakes the effort to provide an examination when developing a service-connection 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. Accordingly, a new opinion is necessary to make a determination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following actions: 1. The Veteran's claims files and all records on Virtual VA must be made available to a VA examiner with sufficient expertise to offer an opinion addressing the etiology of the Veteran's current tinnitus. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Based on a review of the record, the examiner must opine as to whether the Veteran's currently diagnosed tinnitus is at least as likely as not incurred in, or otherwise related to the Veteran's military service. In offering such opinion, the examiner is instructed to accept: * The Veteran's exposure to noise during service as fact based on acoustic trauma, as a result of his military occupational specialty, an indirect fire crewman noise. * The Veteran is presumed sound upon induction into service; he did not have a pre-existing tinnitus condition. The report must include a complete rationale for all opinions expressed. 2. The report must be reviewed by the RO/AMC to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 3. If another VA examination is deemed necessary, the Veteran must be advised of the importance of reporting to such examination and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of any notification letter sent to the Veteran regarding any scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to any scheduled examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Thereafter, readjudicate the Veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ L. M. BARNARD Acting 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).