Citation Nr: 1330631 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-13 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1975. This matter has come before the Board of Veterans' Appeals (Board) on appeal from June 2007 and September 2008 rating decisions of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In a March 2012 decision, the Board denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. He appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). The Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand (JMR). In a February 2013 Order, the Court granted the motion, vacated the March 2012 Board decision with regard to the denials of service connection, and remanded the case to the Board for further appellate review. This order did not disturb the March 2012 decision insofar as it found new and material evidence sufficient to reopen the Veteran's underlying claim of service connection for bilateral hearing loss. 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 In October 2010, the Veteran underwent a VA medical examination in conjunction with these claims. At that time, the examiner found that the Veteran's bilateral hearing loss was not due to or the result of noise exposure in the military, citing a March 1975 audiological evaluation that showed clinically normal hearing. This examiner was unable to provide an opinion about the etiology of the Veteran's tinnitus without resorting to speculation. In an October 2011 addendum, this examiner noted that the Veteran's inability to provide an onset date for his tinnitus and his normal hearing at the time of discharge were factors in her inability to render an opinion without resorting to mere speculation. In the February 2013 JMR, both parties agreed that the negative medical nexus opinion was not sufficiently explained to be adequate for VA rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008)(holding that in order to be adequate, a medical opinion must be supported by a rationale). When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Therefore, a new medical examination and opinion, accompanied by a reasoned medical explanation, is necessary. As mentioned above, the examiner noted that tinnitus could be related to hearing loss. In this way, any change in the findings related to the Veteran's hearing loss may affect an examiner's ability to render an opinion with regard to the tinnitus issue. Thus, these claims are inextricably intertwined. The examiner is therefore also asked to consider the question of whether the Veteran's tinnitus is attributable to his in-service noise exposure or to his hearing loss. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination with a suitably qualified VA examiner. Specifically, the VA examiner should answer the following questions: a. Is it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current hearing loss is attributable to his in-service noise exposure? b. Is it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current tinnitus is attributable to his in-service noise exposure? c. Is it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current tinnitus is attributable to his bilateral hearing loss? The claims folder, including this remand, must be sent to the examiner for review. The examiner must provide a rationale for any opinion reached. If the examiner is unable to provide an opinion without resort to speculation, he or she must provide reasons as to why this is so; and state whether the inability is due to the limits of scientific or medical knowledge or whether there is additional evidence that would permit the needed opinion to be provided. 2. Thereafter readjudicate the claims in light of any additional evidence obtained. If any of the benefits sought are not granted, issue a supplemental statement of the case and give the Veteran and his representative opportunity to respond before the record is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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) (2013).