Citation Nr: 1336267 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-00 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for hearing loss, right ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from December 1965 to February 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. 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 Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran had a VA audiological examination in April 2010. The examiner opined that the tinnitus was not at least as likely as not due to noise and other conditions encountered during service because there was no evidence that the Veteran was treated for or complained of tinnitus during service. This rationale is insufficient because it was based entirely on the lack of in-service complaints. The examiner did not consider whether there is a causal connection between the Veteran's tinnitus and his credible reports of in-service noise exposure, which included aircraft and artillery. Thus, a new opinion must be obtained before the claim can be decided on the merits. In February 2012 the Veteran wrote that he would not be able to attend a March 2012 VA audiological examination. The claim was certified to the Board without the Veteran being scheduled for a new examination. Therefore, giving the benefit of doubt to the Veteran, the Board finds the Veteran must be scheduled for a new audiological examination before the claim can be decided on the merits. VA treatment records to September 2012 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from September 2012 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claim for service connection for hearing loss, right ear, and tinnitus. Document all unsuccessful attempts to obtain such records. 2. Notify the Veteran that he may submit lay statements from himself and from individuals who have first-hand knowledge of his in-service and post-service right ear hearing loss and tinnitus and the onset of these conditions. He should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain the Veteran's VA treatment records from September 2012 to the present. 4. Thereafter, arrange for the Veteran to undergo a VA audiological examination. The claims file must be made available and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. Then the examiner must opine as to whether the Veteran's right ear hearing loss and tinnitus are at least as likely as not related to or had their onset in service. The examiner must assume as true that the Veteran was exposed to acoustic trauma during service. A complete rationale for all opinions must be provided in a legible report. 5. Then readjudicate the appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ STEVEN D. REISS 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).