Citation Nr: 1339010 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-16 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability, for accrued benefits purposes. 2. Entitlement to service connection for tinnitus, for accrued benefits purposes. REPRESENTATION Appellant represented by: Robert C. Brown, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had service in the Army National Guard from October 1947 to July 1949. The Veteran died in September 2012, and his widow has been substituted as the claimant in this matter. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the benefits sought on appeal. The Veteran and his wife testified before the undersigned Acting Veterans Law Judge at a hearing at the RO in November 2010. A transcript of the hearing has been associated with the appellant's claims file. The Board subsequently remanded the case in January 2011 for further evidentiary development and adjudication. In an August 2011 decision, the Board denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In May 2013 the Court vacated and remanded the appeal for further action consistent with its memorandum decision. After the Veteran's death in September 2012, his widow submitted a November 2012 application for accrued benefits. Under the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) which created 38 U.S.C.A. § 5121A (West Supp. 2012) (substitution in case of death of a claimant who dies on or after October 10, 2008), persons who would be eligible for accrued benefits may be substituted for a veteran who dies during the pendency of an appeal. Evidence associated with the claims file reflects that the appellant is the Veteran's surviving spouse. As such, she is eligible to apply for accrued benefits and was properly substituted as claimant in place of the Veteran in December 2012. 38 U.S.C.A. § 5121A. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). 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 appellant contends that the Veteran's bilateral hearing loss and tinnitus were attributable to noise exposure while he served in the Army National Guard, including engine noise from his training as an auto mechanic and acoustic trauma from standing near firing howitzers. The Board notes that VA audiology examination conducted in April 2011 showed a bilateral hearing loss disability for VA purposes, as well as a diagnosis of tinnitus. 38 C.F.R. § 3.385. Further, the Veteran's service records document that he took an auto mechanics course while in the Army National Guard. Per the January 2011 Board remand instructions, the Veteran underwent a VA examination in April 2011. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not related to any in-service noise exposure. In so finding, the examiner noted that the pattern of the Veteran's hearing loss "is not consistent with noise exposure." The examiner also pointed to the fact that the Veteran was "unable to definitively state that his hearing problems and tinnitus manifested during that time." However, in the May 2013 Memorandum decision, the Court determined that the examiner failed to provide an adequate rationale for his opinion that the Veteran's hearing loss and tinnitus were not related to his service. While the examiner noted that the pattern of the Veteran's hearing loss "is not consistent with noise exposure", the Court determined that the examiner did not specify the "pattern" to which he referred. The examiner also based his opinion on the Veteran's inability to definitively state that his current hearing problems and tinnitus problems manifested during service. However, the Court noted that this was inconsistent with the evidence of record as the examiner did not address the apparent inconsistency between the Veteran's inability to "definitely state" that his tinnitus and hearing loss began during service and the Veteran and appellant's testimony and statements that the Veteran's hearing loss and tinnitus began in service. As a result, the Court again found that the examiner's opinion was inadequate because it lacked a reasoned explanation. As the Court determined that the April 2011 VA examination is not adequate, an additional medical opinion is needed, by way of an addendum opinion that addresses the appellant's claims. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4) (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should arrange for the same examiner who conducted the April 2011 examination, if possible, to review the claims folder and determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's diagnosed hearing loss and tinnitus were related to his period of military service, and particularly to his in-service exposure to acoustic trauma. If the reviewer again determines that the pattern of the Veteran's hearing loss "is not consistent with noise exposure", he must specifically offer an explanation of what pattern he is referring to in regards to hearing loss. The reviewer must also specifically address his prior opinion which he based on the Veteran's inability to definitively state that his current hearing problems and tinnitus problems manifested during service and how this relates to the Veteran and appellant's testimony and statements that the Veteran's hearing loss and tinnitus began in service. The examiner must set forth the complete rationale for the opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate. Citations to the record or relevant medical principles should be included as necessary to explain the examiner's opinion(s). 2. Ensure that the addendum/examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 3. Then, after ensuring any other necessary development has been completed, readjudicate the appellant's claims. If any benefit sought remains denied, the appellant and her representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ J.K. BARONE 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).