Citation Nr: 1331383 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-23 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2008; a statement of the case was issued in May 2009; and a substantive appeal was received in June 2009. 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 At a VA examination in March 2008, the Veteran reported that he noticed hearing loss and tinnitus beginning in service. The examiner opined that hearing loss and tinnitus were less likely than not related to service. The rationale appears to be solely based on the fact that there is no documentation of either disability in the service treatment records. The Veteran's representative correctly pointed out that the absence of hearing loss in service does not legally preclude service connection. Hensley v. Brown, 5 Vet. App 155 (1993). Moreover, a medical opinion that is based solely on the absence of documentation in service treatment records without considering a Veteran's reports is insufficient. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should ask the March 2008 examiner to review the claims folder. The examiner should consider the Veteran's reports of symptoms beginning in service and provide an opinion as to whether it is at least as likely as not that current tinnitus is related to a disease or injury in service. The examiner should provide reasons for the opinions that reflect consideration of the Veteran's reports. If the examiner rejects the Veteran's reports, the examiner should provide reasons for doing so. Even if the examiner finds that hearing loss or tinnitus were not shown in service; the examiner should provide an opinion as to whether the noise exposure in service, as likely as not, caused the current hearing loss or tinnitus. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the March 2008 VA examiner is not available, the Veteran should be afforded another VA audiologic examination in order to obtain these opinions. The claims file must be made available to the examiner for review in connection with the examination. 2. If the claims remain denied, the AOJ should issue a supplemental statement of the case, before returning the record to the Board, if otherwise 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). _________________________________________________ Mark D. Hindin 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).