Citation Nr: 1600573 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 08-09 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from September 1975 to April 1986 and also served in the Marine Corps Reserve until 1998, with periods of active and inactive duty for training. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which, in part, denied entitlement to service connection for bilateral hearing loss and tinnitus and a December 2006 rating decision of the RO in San Diego, California. In the December 2006 rating decision, the RO declined to reopen previously denied claims of service connection for bilateral hearing loss and tinnitus. However, because the evidence received since the 2005 denial included relevant service personnel records and a service examination report that were in existence at the time of the prior denial, the claim was re-adjudicated without the need for new and material evidence. 38 C.F.R. § 3.156(c) (2015). In March 2012, January 2014 and August 2014, the Board remanded these issues for additional development. The Board notes that there is an electronic claims file associated with the Veteran's claim, which contains relevant evidence that will be considered by the Board in this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for entitlement to service connection for bilateral hearing loss and tinnitus. VA is obliged to provide an examination or an opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As noted above, the Board remanded this matter in August 2014 for further development. As part of the August 2014 remand, the Board instructed the RO to provide the Veteran with a VA audiological examination to determine the etiology of the Veteran's claimed bilateral hearing loss and tinnitus disabilities. The instructions specifically noted that the absence of treatment for hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. Pursuant to the Board's August 2014 remand, the Veteran was afforded an examination in January 2015. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was caused by or a result of military service. The examiner noted that given that both a pre enlistment audiogram and the Veteran's separation examination did not demonstrate hearing loss per VA standards, it was less likely than not that the Veteran's bilateral hearing loss was associated with military noise. However, while the January 2015 VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was caused by or a result of military service, the negative nexus opinion that was provided appears to be based solely on the absence of documented hearing loss disability in the Veteran's service treatment records. The Board finds that this examination is inadequate and that a remand is necessary for new examination. The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Accordingly, the January 2015 examination report does not comply with the Board's August 2014 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the January 2015 VA examiner should amend his examination report in accordance with the Board's August 2014 directives cited herein to determine whether the Veteran's hearing loss disability had its onset in service, is related to his reported in-service flight experiences, or are otherwise the result of exposure to acoustic trauma in service. Consequently, a new remand is required to comply with the holding of Stegall. On VA examination in January 2015, the VA examiner indicated that the Veteran's tinnitus was at least as likely as not a symptom associated with the hearing loss as tinnitus was known to be a symptom associated with hearing loss. The Board notes that further development and adjudication of the Veteran's claim for bilateral hearing loss may provide evidence in support of his claim for tinnitus. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the Board is remanding the case for a thorough VA opinion including whether the Veteran has a current tinnitus disability; and if so, whether it is related to his service to include as secondary to his claimed bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Return the claims file to the VA examiner that examined the Veteran in January 2015. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should: Furnish an opinion as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's current (diagnosed during the appeal period) hearing loss and/or tinnitus disabilities had their onset in service, are related to his reported in-service flight experiences, or are otherwise the result of exposure to acoustic trauma in service. Notably, the absence of treatment for hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason must be provided for so doing. 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. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Ensure that the 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. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If any benefit sought remains denied, the Veteran and his 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 2014). _________________________________________________ DAVID L. WIGHT 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).