Citation Nr: 1330941 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-10 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from January 1958 to June 1964 with periods of active duty and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that in his March 2009 VA Form 9 Substantive Appeal the Veteran indicated that he wanted to appear for a Board hearing at the local RO. In September 2012, however, he indicated that he did not want a Board hearing but wished to continue his appeal. As such, the request for the hearing is considered withdrawn. 38 C.F.R. § 20.702(e) (2012). 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). 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 appeals the denial of entitlement to service connection for a bilateral hearing loss disability and tinnitus. The Veteran asserts that his hearing loss and tinnitus began in service while working around loud vehicles. He claims to have worked around F-4s and F-16s on the flight line which could have caused his conditions. The Veteran is noted to have served as a vehicle mechanic while on active duty. The Veteran was afforded a VA examination in relation to his claim in November 2011. The examination revealed that the Veteran had a right ear hearing loss disability but that he did not meet the criteria for a left ear hearing loss disability. The VA examiner opined that the hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in service. She stated that there was no documented degradation of hearing during active service. The examiner did not render an opinion regarding tinnitus as she stated that the Veteran denied recurrent tinnitus. Although a left ear hearing loss disability was not found upon examination in November 2011, the Board notes that the September 2007 private audio evaluation indicates that the Veteran may have had a left ear hearing loss disability during the course of this appeal. The Board notes, however, that the audiometric test scores on the private report in September 2007 appear in graphic format only. In Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court held that it was unable to interpret the results of such a graph, because this would constitute a factual finding it is precluded from making. On remand, these results should be interpreted by a VA examiner. Furthermore, although the November 2011 VA examiner rendered an opinion regarding the etiology of the Veteran's hearing loss, the rationale is inadequate as the examiner's opinion appears to be a statement rather than reasoning. Also, the examiner did not address the Veteran's reported flight line noise exposure, in-service work as a vehicle mechanic, and/or his other contentions. Regarding tinnitus, the Board is mindful that the VA examiner stated that the Veteran denied recurrent tinnitus. The Board notes, however, that the Veteran reports tinnitus that is related to service. As to tinnitus, the appellant is competent to identify the presence of this disease. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). An etiology opinion has not been rendered regarding tinnitus, on remand such should be obtained. As the VA examiner did not provide a sufficient reason/rationale for her opinion on hearing loss, and failed to provide any opinion as to tinnitus, the November 2011 VA examination report is inadequate and remand is necessary. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, a remand is necessary. Accordingly, the case is REMANDED for the following action: (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 November 2011 examination report should be returned to the VA examiner who conducted that examination or a similarly situated audiologist. The examiner is to be provided access to the Veteran's claims folders as well as the appellant's Virtual VA file. The examiner must interpret the September 2007 private audiogram graph report. If possible, the examiner must attempt to reconcile the differences between the private September 2007 examination and the November 2011 VA examination findings for the left ear. Following a review of all documents, the examiner is to opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran has a hearing loss disability and/or tinnitus that is caused by service. When rendering the opinion, the examiner must address the Veteran's contentions. The VA examiner should note that the Veteran is competent to report hearing loss and ringing in his ears, and the circumstances surrounding such. The examiner must offer a fully reasoned rationale for all opinions offered. 2. Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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).