Citation Nr: 1327714 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 12-18 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1955 to August 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Augusta, Maine, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Hartford, Connecticut, RO. In July 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action on his part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 C.F.R. § 3.159 (2012). The Veteran avers that he was exposed to noise trauma while serving as an Electrician's Mate aboard the submarine USS Barracuda. Given the nature of his service occupation, the Board finds that it may reasonably be conceded that he likely had had some exposure to noise trauma in service. What he must still establish to substantiate his claim is that his current hearing loss and tinnitus disabilities are related to the noise trauma. On December 2011 audiological evaluation (on a fee basis on behalf of VA) the examiner did not offer an opinion regarding the etiology of the claimed disabilities. On re-examination January 2012 (because the December 2011 examination report was found to be inadequate) the examiner concluded that "[a] statement concerning hearing loss cannot be made without resorting to mere speculation." In essence, this is a non-opinion. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (when an examiner is unable to come to an opinion, such evidence is neither positive nor negative support for service connection, and is therefore not pertinent evidence). Consequently, the Veteran has not been afforded an examination that is adequate for rating purposes, and development for an adequate examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Regarding tinnitus, on January 2012 VA examination the Veteran denied having such disability. However, at the hearing before the undersigned in July 2013 the veteran testified that he has ringing in the left ear. Because tinnitus is a disability the presence of which is established by lay complaints, and generally is not capable of observation by a person other than the one experiencing it, it may reasonably be conceded that the Veteran has had tinnitus during the pendency of this claim. Accordingly, an opinion regarding the etiology of the tinnitus is also necessary. The case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should arrange for the Veteran's record to be forwarded to an audiologist for review and a supplemental opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus disabilities. Based on review of the entire record (to include this remand), including the service treatment records, the Veteran's accounts that he first purchased hearing aids in 1964, the reports of audiological evaluations/audiometry conducted in 1985 and thereafter in conjunction with the Veteran's postservice employment with a manufacturer, and the more recent evaluations by VA, the consulting audiologist should offer opinions that respond to the following: What is the most likely etiology for the Veteran's bilateral hearing loss disability and tinnitus? Specifically, is it at least as likely as not (a 50% or better probability) that such disabilities are due to his exposure to noise trauma in service? If not, please identify the etiological factor(s) considered more likely. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the requested opinion cannot be provided without resort to speculation, the examiner must explain why that is so. 2. The RO should then review the record and readjudicate these claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk 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).