Citation Nr: 1540570 Decision Date: 09/21/15 Archive Date: 10/02/15 DOCKET NO. 13-02 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a February 2015 decision, the Board denied the claim for service connection for bilateral hearing loss and remanded the tinnitus claim for further development. The case has been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal, with the exception of additional VA treatment records considered by the RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that a remand is necessary to obtain an additional VA medical opinion. Specifically, the October 2011 VA examiner determined that it would seem less likely as not that the Veteran's tinnitus was related to military noise sources. In so finding, the examiner cited an Institute of Medicine report, noting that it implied that the probability of tinnitus being related to noise exposure did decrease the greater the time of onset is removed from the time of the noise exposure. In addition, most audiologists generally use the rule-of-thumb of one to two years after noise exposure as the cutoff. The examination report also shows that the Veteran's tinnitus was as likely as not a symptom associated with hearing loss. The May 2015 VA examiner determined that it was less likely than not that the Veteran had current tinnitus that was caused by or a result of military noise exposure because he denied recurrent tinnitus, inasmuch as he denied having recurrent noises in his ears when specifically asked during the examination. However, the examination report also shows that the Veteran replied that he gets "a ringing every now and then, not very often" that occurred maybe every few months and maybe lasting a minute. On review, while the VA examiners addressed some of the pertinent medical issues in this case, it is unclear if the Veteran's specific and complete history was considered in providing the opinions. The May 2015 examination report also has conflicting findings as to the presence of the Veteran's current, intermittent tinnitus. In addition, the May 2015 examiner noted that the service treatment records show that the Veteran had recurrent ear infections/earaches in service, but did not explain the significance of that fact. Therefore, the Board finds that a medical opinion addressing these matters would be helpful in this case. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the Veteran's claims file to the May 2015 VA examiner, or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's tinnitus. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements, as well as the October 2011 and May 2015 VA examination reports. The Veteran has contended that he currently has tinnitus that is intermittent in nature and that is related to his in-service noise exposure and other duties during the course of his service. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should also be noted that the Veteran was seen during service for ear complaints. See, e.g., January 1972, January 1978, and April 1982 service treatment records and May 2015 VA examination report. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's tinnitus manifested in or is otherwise related to his military service, including noise exposure therein. He or she should also address whether the Veteran's tinnitus is caused by other otherwise related to his in-service ear symptomatology. In providing this additional opinion, the examiner should discuss medically known or theoretical causes of tinnitus and describe how tinnitus generally presents or develops in most cases. In addition, the examiner should discuss the medical significance, if any, of the finding of abnormal contralateral acoustic reflexes in the right ear on the May 2015 VA examination report. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).