Citation Nr: 1342886	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  11-11 388	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from June 1990 to June 1994 and from April 1998 to March 2003.  
This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 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

In July 2010 and June 2012, VA audiologists each provided an opinion that it was less likely than not that the Veteran's current tinnitus was related to service.  The audiologists both relied on the absence of hearing loss in service, along with the absence of a traumatic brain injury.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  The examiner did not explain how the in-service test results precluded service connection for tinnitus that had either a sudden onset or gradually progressed over the years.  A rationale based solely on the absence of hearing loss during service is insufficient.  See Hensley v. Brown, 5 Vet. App. 155 (1993).  Similarly, the absence of a traumatic brain injury is not fatal to the claim for service connection because the Veteran has not claimed he suffered a traumatic brain injury.  Instead, he has claimed that acoustic trauma caused his tinnitus.

The Veteran was awarded the Combat Action Ribbon and is a combat Veteran.  In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  Every reasonable doubt shall be resolved in favor of the Veteran.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013).  Therefore, the Board will assume that the Veteran was exposed to acoustic trauma as a result of his combat service as he has described.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran a VA examination with an appropriate examiner to determine the etiology of the Veteran's current tinnitus.  The claims file should be made available to the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus began in service or is causally and etiologically related to service, to specifically include noise exposure related to combat as described by the Veteran.

When providing an opinion, the examiner should consider the Veteran's statements as credible regarding his exposure to weapons fire and other acoustic trauma related to combat.  The examiner is asked to specifically discuss the Veteran's testimony and evidence of noise exposure in service.

Any negative opinion should not be based solely on the absence of hearing loss in service.

A complete rationale must be provided for any opinion offered.

2.  After the development requested is completed, readjudicate the claim for service connection for tinnitus. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board.

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).



____________________________________________
ROBERT C. SCHARNBERGER
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).


Department of Veterans Affairs