Citation Nr: 1327718 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 13-12 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. As such, the electronic claims file and the paper claims file are both fully considered during this 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 has contended that her tinnitus is etiologically related to her active service and that service connection is therefore warranted. The Board has determined that before it can adjudicate the Veteran's claims for service connection for tinnitus, further development is needed, as described below. 38 C.F.R. § 19.9. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims made clear that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this case, the record reflects that the Veteran has alleged current tinnitus. The Veteran's lay testimony of what she hears is competent evidence, and therefore this lay statement suggests a current disability and is sufficient to satisfy the first McLendon requirement. Further, in her November 2011 Statement in Support of Claim the Veteran also states, "While I was in the military I worked around high pressure pumps pumping oil and fuels during my military career. I have had the noise in my ears starting back when I was in the military and I have had difficulty with my hearing starting back while I was in the military." For purposes of McLendon, this also suggests evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies. The Veteran also indicates that she has had continuous noise in her ears since service which would be an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. Therefore the second and third McLendon requirements are satisfied. In determining the fourth requirement, whether there is sufficient competent medical evidence on file for VA to make a decision on the claim, the Board looks to the VA Examination from February 2012. In December 2011, the RO requested this VA Examination for claims of hearing loss and tinnitus. The VA Examiner appeared to test for hearing loss, but did not provide any test results. Rather, the VA Examiner found that the tests were invalid and unreliable due to poor inter-test reliability, inconsistent results, and the appearance that the Veteran did not give her maximal effort. The VA Examiner did not give any reason or basis for these conclusions. The VA Examiner also did not appear to render any opinion relative to the Veteran's claimed tinnitus. Therefore the Board is left without test results, rationale for the conclusions, or any medical opinion relative to tinnitus. Under these circumstances the Board finds insufficient competent medical evidence on file for VA to make a decision on the claim and that the examination requested by the RO was inadequate. Once VA undertakes an examination, even if not required to do so, an adequate one must be produced. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) Accordingly, the Board finds that the February 2012 VA examination is inadequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Therefore, on remand, the February 2012 VA Examiner should provide the original test results and explain why they were invalid. If the original VA Examiner or the results are not available, then a new VA Examination should be provided. Additionally, the Examiner should fully discuss the nature and etiology of the Veteran's claimed tinnitus. A complete rationale must be provided for all opinions rendered. If the Examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. The claims folder should be made available to and be reviewed by the Examiner in conjunction with the Examination. The Board also notes that the February 2012 VA Examiner may have made adverse credibility findings against the Veteran. However, it is the Board, not the Examiner that determines credibility. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (explaining in footnote 1 that even in the context of a claim of entitlement to service connection for PTSD based on a personal assault stressor the Board is not required to accept a physician's PTSD diagnosis as proof of the occurrence of a stressor but rather is to weigh all evidence of record in making its own determinations). Therefore, the VA Examiner who renders the requested follow-up opinion should refrain from assessing the Veteran's credibility and accept that she is competent to report the onset and continuity of those symptoms that are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Also, the VA Examiner should provide a sufficiently clear and well-reasoned rationale, as well as a basis for her opinion that addresses the objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Finally, prior to eliciting the requested follow-up VA medical opinion, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated relevant VA treatment records from the St. Louis, Missouri, VA Medical Center that have not yet been associated with the claims file. 2. If any of the records requested in item 1 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Request that the Veteran submit the names and contact information of any private medical providers that have treated her for tinnitus. Notify her that she may also submit any relevant private treatment records within her own possession. 4. After the development requested in items 1-3 is complete, forward the Veteran's claims file to the February 2012 VA Examiner for a follow-up medical opinion that summarizes the test results referenced in the original examination report and explains why they were invalid. If the original examiner or the results are not available then a new examination should be provided. In addition, the VA Examiner should also fully discuss the nature and etiology of the Veteran's claimed tinnitus. In determining diagnoses and etiology of the claimed tinnitus, the VA Examiner should consider the auditory trauma that would be experienced by the veteran as a petroleum supply specialist, the frequency and severity of symptoms, and the continuity of symptoms along with all other appropriate medical considerations that may apply. After conducting an examination of the Veteran and performing all clinically-indicated diagnostic testing and any necessary consultations, the VA Examiner should address the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is related to any incident of military service, including in-service noise exposure typical to a petroleum supply specialist working with fuel pumps? In addition, for purposes of this remand, the examiner should accept as true the Veteran's statements to the fact that she experienced noise in her ears during her period of active service. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the Examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter review the record and complete any further development, if necessary. Then, readjudicate the Veteran's tinnitus claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Cheryl L. Mason 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).