Citation Nr: 1327985 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-03 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2012). The Veteran contends that his current right ear hearing loss and tinnitus are a result of military service. A VA examination and opinion were provided for the Veteran's claim in October 2009, but the inadequacies evident in the opinion require a remand. The VA examiner's opinion stated that, "[a]fter review of service medical records, personal interview and audiometric testing, it is the opinion of this examiner that Veteran's hearing loss and tinnitus are less likely as not a result of noise exposure during military service." The VA examiner noted in the rationale for the opinion that the Veteran's "hearing was within normal limits at discharge at all ratable frequencies, despite threshold shift at 4kHz." However, the 4000 Hz shift was noted for the left ear earlier in the report, and no discussion was included concerning the potential significance of the decibel shifts at 500 Hz, 1000 Hz, 2000 Hz, and 4000 Hz between enlistment and discharge for the Veteran's right ear. In addition, the VA examiner's rationale stated that the "Veteran had significant occupational noise exposure after the military without the use of hearing protection until the past 15 years." However, the rationale does not indicate the consequence of the occupational noise exposure after military service. Finally, it appears that the Veteran's tinnitus claim was raised at the October 2009 VA examination when he reported having the condition, as earlier documents the Veteran filed only mentioned hearing loss. However, the claims file does not include proper notice pursuant to the Veterans Claims Assistance Act of 2000, informing the Veteran of evidentiary and other requirements to substantiate his tinnitus claim prior to adjudicating that claim in November 2009, or prior to re-adjudication in the supplemental statement of the case in February 2010. As such, proper notice was not provided to the Veteran for his tinnitus claim. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran identify all private and VA medical treatment providers who have treated him from 1969 to present for his hearing loss and tinnitus, and obtain an authorization to request medical treatment records from each provider identified by the Veteran. 2. Send the Veteran notice that complies with the Veterans Claims Assistance Act for his tinnitus claim, with sufficient time to respond to the notice with any evidence or argument prior to adjudicating the claim. 3. The RO must obtain medical treatment records from each provider identified by the Veteran in Directive #1, and associate all of the records with the claims file. 4. After completing the above development, ensure that the Veteran is scheduled for a VA examination for his right ear hearing loss and tinnitus. The claims file must be provided to the examiner, and the examiner must review the claims file in conjunction with the audiometric examination. 5. The examiner must interview the Veteran, and record in detail the history of his right ear hearing loss and tinnitus. The examiner must obtain a detailed history concerning the onset of symptoms, frequency of occurrence, and duration of right ear hearing loss and tinnitus at all time periods beginning from the alleged onset of both conditions to the present. 6. After completing the Directives above, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right ear hearing loss and tinnitus are related to any threshold shifts shown during service. The examiner must provide a detailed rationale explaining the opinion, including analysis of the Veteran's history obtained in Directive #5, audiometric testing evidence of record, and all other relevant evidence in the claims file. 7. The examiner must address the Veteran's exposure to gunfire and tank engine noises in service, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right ear hearing loss and tinnitus were incurred as a result of exposure to gunfire and tank engine noise or any other noise exposure in service. The examiner must provide a detailed rationale explaining the opinion, including analysis of the Veteran's history obtained in Directive #5, audiometric testing evidence of record, and all other relevant evidence in the claims file. 8. The examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current tinnitus is caused by his service-connected left ear hearing loss or right ear hearing loss. The examiner must provide a detailed rationale explaining the opinion, including analysis of the Veteran's history obtained in Directive #5, audiometric testing evidence of record, and all other relevant evidence in the claims file. 9. The examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current tinnitus is related to his service-connected left ear hearing loss or right ear hearing loss. The examiner must provide a detailed rationale explaining the opinion, including analysis of the Veteran's history obtained in Directive #5, audiometric testing evidence of record, and all other relevant evidence in the claims file. 10. Then, re-adjudicate the issue of entitlement to service connection for right ear hearing loss and tinnitus on the merits. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Then return the case to the Board, if in order. 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). _________________________________________________ MARJORIE A. AUER 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).