Citation Nr: 1334034 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-26 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from June 1969 to January 1972. These matters come before the Board of Veterans' Appeals (BVA or Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 asserts that he has hearing loss and tinnitus as a result of exposure to loud acoustic noises during service without benefit of any hearing protection. While in August 2010 (and in a September 2011 addendum) the RO obtained a medical opinion as to the etiology of the Veteran's hearing loss and tinnitus disability, the Board does not find the opinion adequate. The Board has reached this conclusion because the opinion, which noted that the Veteran had likely been exposed to high risk noise during service, was essentially based on negative medical evidence (i.e., service treatment records being negative for complaints, diagnoses, or treatment for hearing loss). See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Further, while post-service noise exposure was noted, there was little discussion as to the significance, if any, of the in-service noise exposure. The Board finds that a remand to provide the Veteran with another VA examination to obtain a competent and credible opinion as to the relationship between his current tinnitus and bilateral ear disability and military service is required. 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request all VA medical records pertaining to treatment of the Veteran from September 28, 2011, and associate them with the claims file (or Virtual VA file). 2. The Veteran should be scheduled for an appropriate VA examination regarding his tinnitus and hearing loss disability. The examiner should be one who has not previously examined the Veteran. The examiner must be provided the Veteran's claims file for review, and any indicated studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should provide answers to the following questions: a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current hearing loss in either ear was caused by his active duty or has continued since service? b) Is it at least as likely as not (50 percent probability or more) that hearing loss in either ear manifested itself to a compensable degree in the first post-service year? c) Is it at least as likely as not (50 percent probability or more) that the Veteran's tinnitus was caused by his active military service? In providing answers to the above questions, the examiner cannot base his entire opinion on the lack of medical evidence such as the in-service and post-service record being negative for complaints, diagnoses, or treatment for hearing loss until many years post service. A complete rationale must be provided for all opinions. 3. The RO/AMC should then, based on all the evidence of record, readjudicate the issues on appeal. If any of the benefits sought are not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond, and the case should thereafter be returned to the Board, as appropriate. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).