Citation Nr: 1752428 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-08 598 ) 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: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1970 to October 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The case is currently under the jurisdiction of the RO in Portland, Oregon. In November 2013, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in September 2014 so that the Veteran's testimony to the effect that service connection had already been established for tinnitus could be evaluated. This was accomplished and the case has been returned to the Board for further appellate consideration. The issues of service connection for diabetes mellitus, coronary artery disease, peripheral neuropathy, and residuals of an amputation of the right lower extremity have been addressed by the RO in a Statement of the Case (SOC) furnished in April 2017. The Veteran did not submit a substantive appeal. Therefore, the Board does not have jurisdiction over these issues. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required on his part. REMAND The Veteran contends that service connection should be established for tinnitus, which he asserts is the result of acoustic trauma to which he was exposed during service. It is noted that service connection has been established for hearing loss of the left ear and that service connection for tinnitus should be established as secondary thereto. The Veteran's representative has pointed out that, while a June 2013 VA examination regarding direct service connection for tinnitus was conducted, the examiner did not address the possibility of secondary service connection, either as proximately due to or aggravated by left ear hearing loss. The representative correctly points out that the June 2013 examiner opined that the left ear hearing loss was at least as likely as not related to in-service acoustic trauma. After considering the statements in the record, the Board finds that a medical examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (setting forth the criteria under which VA is required to obtain an examination). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. The AOJ should arrange for the examiner who evaluated the Veteran in June 2013 to review the record and furnish a supplemental opinion regarding whether it is at least as likely as not (probability 50 percent or more) that Veteran's tinnitus is proximately due to or aggravated by his service-connected left ear hearing loss. If the examiner who conducted the June 2013 evaluation is not available, the Veteran should be scheduled for an examination by another examiner who should render the above requested opinion. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). 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). _________________________________________________ BARBARA B. COPELAND 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) (2017).