Citation Nr: 1332230 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-37 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to January 1945. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). In a September 2013 brief, the Veteran's representative raised a claim for increase for service-connected bilateral hearing loss. As this claim has not been developed or adjudicated by the RO, the Board does not have jurisdiction to consider the merits thereof herein. As such, the Board refers this claim to the RO for appropriate actions. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to this claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As was noted in the Board's prior remands, in-service noise exposure has been confirmed. At the time of the April 2013 remand, the evidence related to the Veteran's tinnitus claim included four items. In March 2009, the Veteran underwent clinical examination in a VA audiology clinic. At this time it was noted by the audiologist that no tinnitus was reported. In June 2009, however, the Veteran filed this claim, wherein he reported experiencing tinnitus since his time in service in 1943, although he confirmed that he was not treated. Yet, in a March 2010 statement, the Veteran indicated, "[a]s to tinnitus, I have no idea what that is." In October 2012, a VA examiner answered "no" to whether the Veteran reports recurrent tinnitus and made only one other statement, "Veteran does not claim tinnitus." Thus, the evidence of record shows (1) no tinnitus, (2) a report of tinnitus since 1943, and (3) a question on the part of the Veteran as to what tinnitus is. As the Board noted in April 2013, the October 2012 VA examiner did not shed light as to the symptoms experienced by the Veteran and whether they may be deemed tinnitus. The VA examiner's statement that the Veteran does not claim tinnitus is also inconsistent with the record, as the Veteran has specifically filed a claim for tinnitus. Moreover, the VA examiner failed to note the Veteran's claim that he experienced tinnitus in service, or note the finding in the March 2009 VA treatment record. There is essentially no discussion of any relevant evidence in the VA examination report and only a notation as to the Veteran's lack of a report of tinnitus. In that the Veteran has indeed indicated that he is unaware of what the word "tinnitus" means, it was incumbent upon the examiner to further discuss the disorder in terms of symptoms. From the report, it is unclear as to whether the examiner did any more than ask the Veteran, "Do you have tinnitus?" This would be an unanswerable question when posed to someone who does not know what tinnitus is. For these reasons, the Board found the October 2012 VA examination report to be insufficient for analyzing this claim. Pursuant to the Board's April 2013 remand, the Veteran was afforded a new VA examination. As detailed in the Board's June 2013 remand, the May 2013 VA examination report was reviewed in an effort to determine whether it had adequately complied with the remand directives, but it did not. The VA examiner, with regard to the Veteran's tinnitus claim, did nothing other than submit a checkmark in the box for "No" in response to "Does the Veteran report recurrent tinnitus?" No additional information is provided in the report; thus, it seemingly entirely disregarded the Board's prior remand discussion related to what made the October 2012 report insufficient. Moreover, the RO failed to review the report and ensure compliance. For this reason, the Board had no choice but to again remand the Veteran's claim for entitlement to service connection for tinnitus in June 2013 as the Board errs as a matter of law when it fails to ensure compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's June 2013 remand, the Veteran was again afforded a new VA examination. Unfortunately, the July 2013 examination report is insufficient for the same reasons as the prior VA examination reports. The sole discussion of whether the Veteran has tinnitus was a question of "Does the Veteran report recurrent tinnitus?" that was answered with a checkmark in the box for "No." Without further documentation that the term tinnitus was explained to the Veteran who has been shown to not know what the word means, the July 2013 examination is also insufficient for analyzing this claim. See Stegall, 11 Vet. App. at 271. On remand, the VA examiner should seek information from the Veteran as to the symptoms he experiences and make a determination as to whether these symptoms render tinnitus to be an appropriate diagnosis. Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking, and it is usually subjective in type. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1956 (31st ed. 2007). The examiner must document these findings in narrative form in the report. If tinnitus is diagnosed, the examiner should then opine as to whether it was caused by the in-service noise exposure. Moreover, the Board again notes that service connection is in effect for bilateral sensorineural hearing loss. Thus, the examiner should also make a determination as to whether any current tinnitus is causally connected to the sensorineural hearing loss. Accordingly, this case is remanded for the following actions: 1. The Veteran must be afforded an appropriate VA examination to determine whether the Veteran experiences ringing, buzzing, roaring, clicking or any other symptoms of tinnitus, such that a diagnosis of tinnitus is appropriate. The discussion as to symptoms, including confirmation that the VA examiner explained to the Veteran what tinnitus is, as well as the basis for the diagnosis, or lack thereof, must be documented in narrative format in the VA examination report. Should tinnitus be diagnosed, the examiner must determine if any tinnitus found is related to the Veteran's military service or to his service-connected sensorineural hearing loss. Based upon the entire evidence of record, with consideration of the Veteran's statements, to include his July 2009 claim that he experienced tinnitus in 1943 in service, the examiner must render an opinion as to whether any diagnosed tinnitus is related to the Veteran's military service, or to any incident therein. The Veteran's military occupational specialties, his history of in-service and post-service noise exposure, and any other pertinent clinical findings of record, must be taken into account. The examiner must also determine whether any current tinnitus is a symptom associated with the service-connected sensorineural hearing loss. All records in Veterans Benefits Management System (VBMS) must be made available to the examiner, and the examiner must specify in the examination report that the VBMS electronic claims file has been reviewed. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 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 paragraphs above, the claim must be readjudicated. If any claim on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the claim must be returned to the Board for further appellate review. 4. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. Accordingly, this claim must be afforded expeditious treatment. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).