Citation Nr: 1326456 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-28 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying the claims currently on appeal. 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 contends that he is entitled to service connection for bilateral hearing loss and tinnitus. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was afforded a VA audiometric examination in June 2010. The examiner opined that it was not as least as likely as not that the Veteran's hearing loss and tinnitus were related to military service because hearing was within normal limits upon separation and because there were no documented complaints of hearing loss and or tinnitus in service. First, it appears that this examiner impermissibly relied upon the lack of in-service complaints of or treatment for bilateral hearing loss or tinnitus in the Veteran's service treatment records in support of this opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding the lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim). Furthermore, the examiner does not appear to have considered the Veteran's reported history of hearing loss for some 30 years and tinnitus after military service when formulating this opinion. This is certainly something for which the Veteran is competent to report. Therefore, this opinion is of little probative value in that it relied upon the lack of in-service documentation while ignoring the Veteran's lay history. An additional opinion was provided in December 2011. However, this opinion is also of little probative value. Specifically, the examiner indicated that the possibilities of etiology were numerous and she could not provide an opinion as to the onset of the Veteran's hearing loss or tinnitus "with absolute certainty" without resorting to mere speculation. However, the proper evidentiary standard is "at least as likely as not," or a probability of 50 percent or greater. An opinion regarding etiology is not to be made with absolute certainty. Therefore, since the previously obtained opinions are insufficient for VA rating purposes, the Veteran must be scheduled for a new examination in which an opinion as to whether it is at least as likely as not that his hearing loss and/or tinnitus manifested during, or as a result of, active military service, that fully takes into consideration the Veteran's assertions regarding the onset of his symptomatology, is provided. See 38 U.S.C.A. § 5103(d); 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 that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA audiometric examination before an audiologist. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the scheduled examination, and the examination report should reflect review of these items. The examiner is asked to perform all necessary tests and studies, and offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss and/or tinnitus manifested during, or as a result of, active military service. A complete rationale must be provided for all opinions offered and the Veteran's lay statements regarding in-service noise exposure and the onset of his symptomatology must be fully considered and discussed when offering an opinion. 2. The AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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). _________________________________________________ WAYNE M. BRAEUER 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).