Citation Nr: 1610722 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-35 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1968. This case is before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 2011 rating decision of the VA Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned in June 2014. In March and September 2015 the Board remanded this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, the case must be remanded again because the VA examination did not fully address what caused the Veteran's tinnitus. As a matter of medical history, the Board already conceded he had in-service acoustic trauma, including from duties as an armor crewman. Nevertheless, there must still be some probative evidence showing that tinnitus is causally linked to noise exposure several decades ago. VA examiners have stated no such linkage, but critically these opinions are based solely on an evaluation of the service records. Contrary to the requirements of the United States Court of Appeals for Veterans Claims they fail to specifically address and consider the appellant's inservice history of acoustic trauma, and the fact that the appellant is competent to report that he has had tinnitus since service. The Veteran is competent to provide a lay diagnosis of tinnitus as it is a disorder capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Hence, a supplemental opinion is requested from the November 2015 VA examiner. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a veteran is entitled to compliance with remand directives, and the Board commits error, as a matter of law, in failing to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. Provide the November 2015 VA audiologist access to the claims file, to include the Veteran's Virtual VA and VBMS electronic claims folders. After thorough review of the claims file and medical history, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tinnitus was incurred in service or is otherwise etiologically related to service, due to his presumed exposure to in-service acoustic trauma while performing occupational duties. The examiner is reminded that while service treatment records are absent notation of tinnitus or noise exposure (and as previously noted provide "no objective evidence of acoustic trauma"), the Veteran is competent to assert that he had problems with ringing in the ears while on active duty tinnitus. The examiner should further note that the Board accepts his claim of inservice noise exposure as fact. The examiner is to specifically consider and address the Veteran's February 2011 lay statement, and June 2014 hearing testimony (see hearing transcript pp. 4-6, in Virtual VA database) regarding the nature of in-service noise exposure. The examiner must include a rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. If the requested opinion cannot be rendered without resorting to speculation, the examiner must 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. The examining audiologist is advised that she/he must discuss the Veteran's self-reported history of a continuity of symptoms since he served on active duty. The audiologist is advised that the Veteran is not competent to state that he has suffered from ringing in the ears since service. The audiologist is further advised, however, that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. 2. Then review the claims file. If the directive specified in this remand has not been implemented, take proper corrective action before readjudication. 3. Thereafter, readjudicate the claim based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ DEREK R. BROWN 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).