Citation Nr: 1334138 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-28 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought on appeal. The Veteran appeared and testified at a hearing before a Decision Review Officer (DRO) in August 2009. A transcript of the hearing is of record. The case was most recently remanded in March 2013 for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that additional development is necessary regarding his service connection claim for tinnitus. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2013, the Board remanded the Veteran's claim for further development-namely, for a VA examination to determine the etiology of his tinnitus. In the remand, the Board specifically requested that the VA examiner determine whether there is any evidence of a previous tympanoplasty in the right ear. The Veteran was afforded a VA examination in May 2013, during which the VA audiologist indicated that it was beyond the scope of his expertise to determine whether there was a previous tympanoplasty in the right ear. The AMC submitted an independent medical opinion that same month wherein the VA physician opined that there is no clinical evidence showing any history of right tympanoplasty. In August 2013, the Veteran's representative submitted additional argument in support of the Veteran's claim. Namely, the representative pointed out that the requirements of the March 2013 remand were not fulfilled as the Veteran was not physically examined to determine whether he had a history of a right tympanoplasty. The Board is inclined to agree. As such, the claim must be remanded for the requested VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a qualified medical professional regarding his tinnitus and claimed history of right tympanoplasty. The claims file, and any pertinent evidence contained in an electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination, as well as any diagnostic studies deemed necessary, the examiner should indicate whether there is any evidence of a previous tympanoplasty in the right ear. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran has tinnitus that has been caused or aggravated by his military service. Specifically, the examiner is requested to opine as to whether any current tinnitus is due to noise exposure and/or any surgical procedures performed on the ear during service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. After the above is complete, readjudicate the Veteran's claim. If the benefit sought is not granted, issue a supplemental statement of the case to the Veteran and his representative, and give them an opportunity to respond, before the case is returned. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). _________________________________________________ DAVID L. WIGHT 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).