Citation Nr: 18155927 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-06 222A DATE: December 6, 2018 REMANDED Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to April 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA). In February 2015, the Board denied a claim for medical expense payment or reimbursement for non-VA treatment received in 2012 in a separate decision and remanded this appeal to schedule the Veteran for a hearing. The requested hearing was held before the undersigned Veterans Law Judge in May 2015. A transcript of the hearing is of record. The undersigned Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional argument, as well as evidence for which there is an automatic waiver of initial agency of original jurisdiction (AOJ) consideration. See also September 2017 supplemental statement of the case. The Board remanded the case for further development in December 2016. That development was completed, and the case was returned to the Board for appellate review. In a January 2018 decision, the Board denied the above claim, as well as a claim for service connection for bilateral hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the parties the month prior, dismissing the appeal as to the bilateral hearing loss issue and remanding the tinnitus issue. In the Joint Motion, the parties agreed that the Board erred when it failed to ensure substantial compliance with the December 2016 remand in which it requested an additional VA medical opinion to have an examiner address the complete history of the development of the Veteran’s tinnitus, inasmuch as the February 2017 examiner did not discuss the Veteran’s reports of his in-service noise exposure when finding that he did not have an in-service noise injury. The parties further agreed that remand is warranted to obtain a new VA opinion that complies with the Board’s remand. As such, an additional VA medical opinion is needed. The case is REMANDED for the following action: The AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of his tinnitus. An examination of the Veteran should only 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 and personnel records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had 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. 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. In providing this additional opinion, the examiner should: (1) discuss medically known or theoretical causes of tinnitus and describe how tinnitus which results from noise exposure generally presents or develops in most cases, as distinguished from how tinnitus develops from other causes, in determining the likelihood that any current tinnitus was caused by noise exposure in service as opposed to some other cause; and (2) address the Veteran’s reported history of noise exposure. The Veteran has contended that he developed tinnitus from exposure to excessive noise during his military service as a radio operator and communications yeoman, including use of high frequency receivers in the radio room, as well as other noise in his working and living quarters at his duty stations. He has also contended that the changes in his hearing from the service entrance examination to the separation examination constitute significant threshold shifts. Following service, he worked as an educator and has denied occupational noise exposure, and he has had hearing aids for several years. A detailed factual history of this appeal is provided in the Board’s January 2018 decision. The case has been returned from the Court to obtain an additional medical opinion that considers the Veteran’s reported in-service noise exposure history. It was determined that the February 2017 VA medical opinion was inadequate because the examiner did not discuss this history in finding that, in the absence of a verifiable noise injury, the association between claimed tinnitus and noise exposure could not be assumed to exist. (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. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel