Citation Nr: 1327462 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-46 549A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1965 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran indicated in his December 2009 appeal hat he desired a hearing before a Veterans Law Judge. In May 2012, the Veteran had a hearing before the undersigned. However, due to technical issues, VA was unable to obtain a transcript of the hearing, and in September 2012, the Veteran was notified of this fact and informed that he may elect to attend another hearing. In a September 2012 statement from the Veteran, he stated that he wished to withdraw his request for a hearing. As of this time, no new request for a hearing has been received. This case was initially before the Board in November 2012, when the bilateral hearing loss and tinnitus claims were remanded for further development. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the November 2012 remand, the Veteran was to be afforded a VA examination; he underwent a VA examination in March 2013 and an addendum to that report was obtained in April 2013. The Board finds that it is inadequate. Initially, the Board told the examiner to obtain "[a] complete history of acoustic trauma/noise exposure, and perceived hearing loss and tinnitus symptoms in service and post service." The examiner did not do this during the examination, but instead "reviewed the [September 2007 VA examination] report with the Veteran," who "agreed" with it. In light of the specific directive to obtain a complete history, the Board finds that its remand instructions were not complied with. Next, the examiner's opinion rendered in the examination report and elaborated on in the addendum failed to include consideration of any evidence of record. The Board finds the opinions to be conclusory in nature and inadequate. The opinion noted that it was based "on lack of evidence in the [claims] file and the lack of proximity between the dates of service and the reported onset of hearing loss and tinnitus by the Veteran and the date of the previous [VA] examination" in September 2007. The Board notes that the language quoted above is an exact copy of the language used in the September 2007 VA examination opinion, which the Board previously found to be inadequate. The Board also notes that the examiner does not appear to have reviewed the historical evidence contained in the examination report regarding "onset of hearing loss and tinnitus." Although he did, in the "Remarks" section, comment that the Board should "refer to the previous history" in the September 2007 VA examination, the Board's remand contemplated more than just references to a prior inadequate examination. The examiner should have considered the evidence of record, and offered an explanation for his conclusions, particularly in light of the Veteran's statements that his hearing loss and tinnitus is due to his combat noise exposure in service. Finally, it appears that in the addendum, the examiner links the Veteran's hearing loss to some inner ear problem and stated that his disorders were not the result of his diabetes. The examiner instead concluded it is due either to aging or some idiopathic reason. Again, the Board notes the absence of consideration of the evidence of record in support of the opinion. The examiner additionally provided no aggravation opinion which is a necessary component element of any secondary service connection opinion. Accordingly, in light of these deficiencies, the Board finds the opinion and examination in this case to be wholly inadequate; such inadequacy necessitates a remand in order to obtain another VA examination with a different examiner, preferably an audiologist. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination in order to determine the nature and etiology of his bilateral hearing loss and tinnitus. An examiner other than the March 2013 examiner should be selected to perform this examination; preferably an audiologist should be selected, if at all possible. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. The examiner should obtain from the Veteran a "complete history of acoustic trauma/noise exposure, and perceived hearing loss and tinnitus symptoms in-service, and post-service." The Veteran should be as specific as possible with respect to his dates of onset of symptomatology, etc. and the examiner should aid the Veteran in being as specific as possible. After review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran's bilateral hearing loss and tinnitus are more likely, less likely, or at least as likely as not (50 percent or greater probability) the result of military service, to include combat noise exposure therein. The examiner is to take as conclusive fact that the Veteran was in combat and therefore exposed to all manner of combat noise. The examiner should address any of the Veteran's lay statements of record regarding onset, etiology or continuity of symptomatology of his hearing loss and tinnitus, as well as his January 1968 separation examination in which he was only given a whisper test. If the Veteran's hearing loss or tinnitus is not related to military service, the examiner should then opine as to whether the Veteran's hearing loss and/or tinnitus more likely, less likely or at least as likely as not caused by or related to his hearing loss or tinnitus (should one of those be due to service as found above by the examiner) or his diabetes mellitus, type II. The examiner should further opine whether the Veteran's hearing loss and tinnitus, should they not be related to service or caused by a service-connected disability, are aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected diabetes mellitus, or hearing loss or tinnitus if such are determined above to be due to service. If aggravation is found, the examiner should quantify the approximate degree of aggravation to the best of his/her ability. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for bilateral hearing loss and tinnitus. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS H. O'SHAY 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).