Citation Nr: 1331210 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-42 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to May 2010, which included periods of active duty in the Air Force and various periods of active and inactive duty in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing has been associated with the claims file. For reasons discussed below, 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 on his part. REMAND The Veteran is seeking service connection for tinnitus, which he has asserted was incurred as a result of his exposure to significant noise during service. At the outset, the Board notes that tinnitus, i.e., ringing in the ears, is the type of symptom that is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, there is competent evidence of a current disability, as the Veteran has reported experiencing tinnitus in his ears. The Board also notes that the evidence shows the served as an Aircraft Navigator for many years. Accordingly, the Veteran's military noise exposure is conceded. The Veteran was afforded a VA examination in June 2010, at which time the Veteran reported having constant, bilateral tinnitus, which was manifested by a high pitched ringing noise. The VA examiner opined that the Veteran's tinnitus is not at least as likely as not related to his in-service noise exposure, noting that the Veteran did not report the presence of tinnitus at the previous November 2009 VA examination and that he was unsure of the date of onset of his tinnitus. Since the June 2010 VA examination, the Veteran has provided additional information regarding his tinnitus. At the August 2011 hearing, the Veteran testified that he does not remember denying having tinnitus at the November 2009 VA examination. In addition, the Veteran described his tinnitus disability as background noise similar to how it sounds when you hold a seashell to your ear. The Veteran testified that his background noise gets louder in crowds - making it more difficult to hear - and had a progressive onset, as opposed to a specific date of onset. He also testified that this background noise has always been there with his progressively worsening hearing loss, including before he retired from service in May 2010. At the August 2011 hearing, the Veteran also testified that, while he was given hearing protection during service, the protection was ineffective. Given the Veteran's testimony at the August 2011 hearing, which is considered competent and credible evidence, the Board finds it is not clear if the symptoms variously reported by the Veteran, including high-pitched ringing and background noise, are consistent with a diagnosis of a tinnitus disability or are, instead, simply manifestations of his hearing loss. In this regard, the Board notes that service connection has been established for left ear hearing loss and the Veteran has reported that his hearing has gotten progressively worse over the years. As such, the evidence of record also raises the question of whether the Veteran's tinnitus is secondary to his service-connected left ear hearing loss. Based on the foregoing, the Board finds that a remand is needed in order to obtain an additional medical opinion regarding whether the Veteran has tinnitus, as opposed to symptoms or manifestations of his service-connected left ear hearing loss, and, if so, whether his tinnitus was incurred during active military service or is secondary to service-connected left ear hearing loss. 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 RO/AMC should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated the Veteran for hearing loss and tinnitus since January 2010. After securing the necessary release, the RO should attempt to obtain copies of all medical records from any identified treatment sources, including any VA treatment records not already of record, and associate them with the claims folder. 2. Ask the June 2010 VA examiner to review the claims file, including this remand, and provide an addendum to his previous examination report that addresses each of the following: a. Based upon the Veteran's description of his symptoms, is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's symptoms are consistent with a diagnosis of tinnitus or, in the alternative, are symptoms or manifestations of his hearing loss disability. b. If a diagnosis of tinnitus is rendered, is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's tinnitus was incurred or is otherwise related to his military service? In answering the foregoing, the examiner must acknowledge that the Veteran's in-service noise exposure is conceded, given his military occupational specialty. The examiner must also acknowledge and address the competent lay evidence of experiencing tinnitus during service. The examiner should also consider any lay evidence of a continuity of symptomatology, the Veteran's history of pre and post-service noise exposure, and his report regarding the onset, nature, and progression of his tinnitus. c. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current tinnitus is proximately due to or the result of his service-connected left ear hearing loss disability? d. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current tinnitus disability is aggravated by his service-connected left ear hearing loss disability? In answering the foregoing, the examiner should note that aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. e. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. Please do not restate your conclusion as the basis for your findings. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran has the right to submit additional evidence and argument on the 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).