Citation Nr: 1327404 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 11-04 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 A remand is required in this case to ensure there is a complete record upon which to decide the issues of entitlement to an initial compensable rating for bilateral hearing loss and entitlement to service connection for tinnitus. First, in his February 2011 substantive appeal, the Veteran reported, "I also contend my hearing loss has deteriorated in the last year and continues to become worse; if you are not looking at me when speaking to me I can't not [sic] hear you." VA last provided the Veteran with an audiological examination in May 2010. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Second, the Veteran has asserted that the May 2010 VA examination is not an accurate assessment of his tinnitus symptoms. Specifically, the Veteran stated on his substantive appeal, "I said in the exam that I don't have ringing in my ears but I have the humming which I understand is a form of tinnitus." Similarly, in his August 2010 Notice of Disagreement, the Veteran explained, "I don't have or haven't had the ringing in my ears for some time but the humming noise is constant." As a result, the May 2010 VA examination report is based on the premise that the Veteran did not have tinnitus at that time. Consequently, the examiner concluded that the Veteran's tinnitus "has gone away," and he therefore did not provide a nexus opinion. Thus, the Board finds that May 2010 VA medical opinion is inadequate to render a decision for service connection for tinnitus because it does not take into account the presence of a current disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his bilateral hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the current level of severity of his bilateral hearing loss and tinnitus. All indicated tests and studies should be accomplished and the findings then reported in detail. A rationale should be given for all opinions and conclusions expressed. Specifically, the examiner should consider the Veteran's statements regarding current tinnitus symptoms, including, but not limited to, the "humming" noise described by the Veteran. The examiner should also obtain a comprehensive history of tinnitus symptoms. The examiner must review all pertinent evidence of record and 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 began during service or is otherwise linked to noise exposure during service. 2. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. Then return the case to the Board, if in order. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).