Citation Nr: 1418759 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 11-30 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active naval service from May 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2013, the Board remanded the appeal for further development. REMAND In the August 2013 remand, the Board requested that the Agency of Original Jurisdiction (AOJ) obtain any pertinent medical records and schedule the Veteran for a VA examination to determine the nature and etiology of any left ear hearing loss disability and tinnitus. The Board noted that, while the Veteran's hearing was normal at separation, a review of the entrance and separation audiograms indicated that his hearing underwent a shift in thresholds. The Board also noted that a negative opinion cannot be solely based upon the Veteran's normal hearing at separation. Hensley v. Brown, 5 Vet. App. 155 (1993). In an August 2013 letter, the AOJ asked the Veteran to identify any healthcare providers that had treated him for his disabilities. Receiving no reply, the AOJ provided the Veteran a VA examination in October 2013. There is no indication that the AOJ attempted to obtain any pertinent VA medical records, and the report of the VA examination is incomplete. Although advised against doing so, the examiner based the negative opinion on the fact that the Veteran's hearing was normal at separation. The examiner also did not consider the shift in thresholds as indicated by the service audiograms. Thus, an examination should be obtained that addresses the above, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ should also obtain any outstanding medical records. The record contains VA treatment notes through December 2012. Thus, any treatment notes since that time should be obtained. The claim for service connection for tinnitus is inextricably intertwined with the claim for service connection for left ear hearing loss disability and cannot be decided until a decision is made with regard to that claim. Thus, the tinnitus claim is again remanded pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet App 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records since December 2012. 2. Then, schedule the Veteran for a VA audiology examination with an examiner who has not previously examined him. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all opinions and conclusions. Specifically, the examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that any left ear hearing loss disability is related to the Veteran's service? A negative opinion cannot be solely based upon a finding of normal hearing at separation. The examiner should provide the rationale for the opinion, to include any references to the medical literature. The examiner must address the shift in thresholds indicated by the entrance and separation audiograms. (b) Is it at least as likely as not (50 percent or greater probability) that tinnitus is related to the Veteran's service? 3. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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).