Citation Nr: 1340740 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-13 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Jose, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in April 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2012. The Board notes that the Veteran has not asserted that his tinnitus was caused or aggravated by his hearing loss disability. However, in Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Court held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which he can obtain the benefit sought for the same disability. As will be further discussed below, there is evidence which acknowledges a possible relationship between the Veteran's tinnitus and his hearing loss. As such, the Veteran's claim has been expanded to include entitlement to service connection under the theory of secondary service connection, and the issue is as stated on the title page. 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 The Veteran asserts that his current bilateral hearing loss and tinnitus is due to his service as a Morse Code interceptor and a truck driver. The Veteran reported in-service noise exposure from radios, manual typewriters, weapons fire during training, and loud engines. In March 2012, the Veteran underwent a VA examination. The examiner noted the normal hearing findings in the Veteran's service treatment records and found that with the evidence provided in the service treatment records it is less likely that the bilateral hearing loss was due to military noise exposure. Unfortunately, the VA examiner's medical opinion is inadequate in addressing the bilateral hearing loss claim. The VA examiner appears to base her opinion on the fact that the Veteran did not demonstrate hearing loss in service and did not provide any further explanation for her opinion. The Court has held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the VA examiner did not discuss any of the Veteran's lay assertions, such as his significant noise exposure in service or the lack of noise exposure in his post-service occupations. An examiner may not ignore lay evidence and base her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Therefore, another opinion is warranted. In giving an opinion, the physician must consider the Veteran's lay statements and discuss the significance of the absence of hearing loss in service. As it pertains to the claim of service connection for tinnitus, the March 2012 examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss; however, the examiner did not opine as to whether tinnitus was related to the Veteran's claimed military noise exposure. Therefore, the examiner's opinion is inadequate as to whether the Veteran's tinnitus is related to his military service. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr, 21 Vet. App. at 311. Therefore, another opinion is warranted. In giving an opinion, the physician must consider the Veteran's lay statements and discuss the significance of the absence of tinnitus in service. As mentioned in the introduction, because the examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss, the Board has expanded the Veteran's claim to establish service connection for tinnitus to include the theory of secondary service connection. Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss and tinnitus. In that letter, the Director of the VA Compensation and Pension Service indicated that that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. However, the Veteran has not been provided the criteria necessary to substantiate a service connection claim under this theory of entitlement as per 38 C.F.R. § 3.310, and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the Board must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice and the Board is without authority to do so. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter in connection with his claim for service connection for tinnitus. The letter should include an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. Send the claims file to an appropriate medical professional to determine the etiology of the Veteran's current bilateral hearing loss and tinnitus. The claims folder, including a copy of this remand, must be made available and reviewed by the examiner in conjunction with the examination. After reviewing the claims file, the examiner is requested to provide a medical opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed bilateral hearing loss and/or tinnitus is related to the Veteran's in-service noise exposure. The examiner should also opine as to whether it is at least as likely as not that the Veteran's tinnitus was caused by or aggravated by any service related hearing loss. As it pertains to the aggravation aspect of the opinion, the examiner should comment as to whether any service-related hearing loss increased the severity of the Veteran's tinnitus. If aggravation is found the examiner should identify that aspect of the disability which is due to aggravation. The examiner must state whether there are medical reports or studies that indicate that noise induced hearing loss and/or tinnitus can have a delayed onset, including years after the exposure event(s). The examiner should reconcile any such studies with his/her medical opinion and should address this theory within his opinion. A complete rationale for all opinions and conclusions reached should be provided. The examiner should consider the Veteran's noise history and find credible the Veteran's exposure to acoustic trauma and various noises in service. In this regard, the Veteran reports noise exposure as a Morse Code interceptor. He listed to various noises on the radio and the noise of the manual typewriter that he used to record the messages intercepted. His noise exposure also involved weapons firing during training exercises and noise associated with riding in various Army vehicles. The Veteran also reported exposure to noise as a heavy truck driver where he was exposed to loud engines. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the claim for service connection for bilateral hearing loss and tinnitus, to include as secondary to bilateral hearing loss. If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. 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 CONTINUE ON THE NEXT PAGE action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. OSBORNE 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).