Citation Nr: 1325977 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-18 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus, to include as secondary to right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for bilateral hearing loss and tinnitus. The Board notes that in an April 2009 rating decision, the RO granted service connection for right ear hearing loss. This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997). In November 2011, the Board upheld the RO's denial of service connection for left ear hearing loss and remanded the case for further development by the originating agency with regard to the issue of entitlement to service connection for tinnitus. The case has been returned to the Board for further appellate action. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA must make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4) (2012). As noted in the November 2011 remand, the Veteran was afforded a VA audiology examination in April 2007. The examiner stated that the Veteran's tinnitus was less likely than not related to service, and that it was more likely than not secondary to the hearing loss which occurred post service. Subsequently, the Veteran was granted service connection for right ear hearing loss. He was again examined by VA in July 2009. The examiner was to indicate if the tinnitus was due to right ear hearing loss, in service acoustic trauma, post service acoustic trauma, family history of hearing loss, use of ototic drugs, or some other cause. The July 2009 VA examiner stated that the tinnitus was caused by an etiology other than acoustic trauma based on the report given by the Veteran. In the November 2011 remand, the Board found that the opinion provided by the July 2009 VA examiner was inadequate because the examiner did not discuss the etiology of what the "other than acoustic trauma" could be. Furthermore, the examiner failed to address the finding of the previous VA examiner in April 2007, who stated that the Veteran's tinnitus was due to hearing loss, and the fact that the Veteran has service-connected hearing loss in the right ear. The examiner was to offer an opinion as to whether any currently diagnosed tinnitus is due to service, or whether any currently diagnosed tinnitus was due to or aggravated by the service-connected right ear hearing loss. The Veteran was afforded another VA examination in December 2011. The examiner opined that the tinnitus reported is less likely as not caused by or a result of in-service acoustic trauma. He provided a rationale for this finding. The examiner also opined that it is likely that the tinnitus being experienced is caused by an etiology other than acoustic trauma based on the report given by the Veteran. However, he again failed to discuss what the etiology of the "other than acoustic trauma" could be, and failed to address the finding of the April 2007 VA examiner, who stated that the Veteran's tinnitus was due to hearing loss, and the fact that the Veteran has service-connected hearing loss in the right ear. In addition, the examiner did not offer an opinion as to whether any currently diagnosed tinnitus was due to or aggravated by the service-connected right ear hearing loss. The December 2011 VA examiner has not complied with the Board's remand directives. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's currently demonstrated tinnitus is necessary. 38 C.F.R. § 4.2 (2012). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination by an examiner who has not previously examined him, to determine the etiology of any currently demonstrated tinnitus. The examiner should review the claims folder and note that review in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed tinnitus is the result of noise exposure or other injury or disease in active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current tinnitus was caused or aggravated by the service connected right ear hearing loss. The examiner is advised that the Veteran is competent to report injuries, including noise exposure, and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. A rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 2. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012). 3. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ F. JUDGE FLOWERS 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).