Citation Nr: 1331472 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 13-16 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to April 2007. His service awards and decorations include the Combat Action Badge (CAB) for his service in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for bilateral tinnitus. 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 Board has determined that additional substantive development is necessary prior to appellate review of the claim on appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran asserts that his tinnitus is due to noise exposure during service. He is competent to report tinnitus because it requires only personal knowledge, not medical expertise. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the Veteran's receipt of the CAB demonstrates he had combat service. As a combat veteran, lay evidence is sufficient proof of an alleged injury if it is consistent with the circumstances, conditions and hardships of service. 38 U.S.C.A. § 1154(b). The Veteran's DD-214 shows that his military occupational specialty (MOS) was a construction equipment operator, which is also consistent with his lay statements. The Veteran was afforded a VA audiologic examination in December 2011. During the examination, the Veteran stated his tinnitus began around 2004 or 2005, and described the conditions of his noise exposure while in service. He also denied a history of any post-service noise exposure. The examiner opined that the Veteran's tinnitus is not related to his military service because he denied it on his post-deployment health assessment in July 2004. The Board finds the December 2011 VA examination inadequate because the examiner did not address the Veteran's statements that his tinnitus possibly began in 2005, which is after the July 2004 health assessment, but still within his period of active service. Additionally, the examiner did not address the Veteran's reports of in-service exposure to loud noises, his period of combat service, or his MOS as a construction equipment operator. Finally, the opinion is also inadequate to the extent that the examiner relied on the absence of tinnitus in the STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding an examination inadequate where the examiner did not comment on the Veteran's lay statements but instead relied on the absence of evidence in the STRs to provide a negative opinion). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. For the reasons stated above, the December 2011 VA opinion is inadequate and must be returned for clarification. 38 C.F.R. § 3.159(c)(4). Inasmuch as the case is being remanded for an addendum, any outstanding VA treatment records from St. Louis VA Medical Center (VAMC) should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA outpatient treatment records from the St. Louis VAMC dated since October 2011. All records received should be associated with the claims file. 2. After all records have been received, refer the Veteran's claims file to the examiner who conducted the December 2011 VA audiologic examination or, if unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's tinnitus. After reviewing the record again, the examiner is asked to clarify whether: It is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is causally linked to his period of active duty from April 2003 to April 2007, to include combat service in Iraq, with a MOS as a construction equipment operator. The examiner must reconcile the opinion with all evidence of record, to include the Veteran's lay reports of tinnitus symptoms during and since service. The rationale for any opinion provided should be set forth. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility; but rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resorting to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time 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). _________________________________________________ CHERYL L. MASON 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).