Citation Nr: 1808631 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-44 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1963. This matter comes to the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied the Veteran's claim for service-connected disability compensation for tinnitus and the Veteran timely appealed that ruling to the Board. The Board remanded the case for further development in June 2017. The issue of entitlement to service connection for a bilateral hearing loss disability has been raised by the record - specifically by the receipt of an October 2017 VA-authorized audiological examination report, which identifies a bilateral hearing loss disability which, according to the examiner, is at least as likely as not related to military service, and by the post-remand brief of the Veteran's representative, dated January 2018, which asserts that the Veteran is eligible for service connection for tinnitus as a secondary result of his bilateral hearing loss disability pursuant to 38 C.F.R. § 3.310. Because the Veteran has not filed a formal claim for compensation for a hearing loss disability his eligibility for that benefit has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). Although the Board regrets the need for further delay, the appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service-connected disability compensation for tinnitus. He contends that the condition is the result of his exposure to the loud noise of the gun of a Coast Guard cutter. His claim was initially denied without the benefit of an expert opinion after the Veteran failed to appear for an audiology examination scheduled for February 1, 2014. The Veteran promptly explained that he did not receive notice of the examination in time to attend. Accepting the Veteran's representations, the Board remanded this appeal to schedule a new examination. The Veteran was examined by an audiologist in October 2017. The examiner conducted auditory threshold and speech discrimination tests and indicated the presence of bilateral hearing loss meeting the regulatory criteria for a hearing loss disability. 38 C.F.R. § 3.385 (2017). The examiner opined that it was at least as likely as not that the Veteran's current hearing loss was the result of his exposure to the loud noise of the gun in service. Based on the Board's review of the record, the Veteran has never filed a claim seeking disability compensation for hearing loss and the AOJ has never adjudicated such a claim. The AOJ's instructions to the October 2017 examiner requested only an opinion on the likelihood that tinnitus was related to any disease, injury or event during active duty service, including the Veteran's claimed exposure to loud noise. Under these circumstances, the examiner likely provided an additional opinion on the etiology of hearing loss because VA's current standard disability benefits questionnaire for hearing loss and tinnitus requests such an opinion. The October 2017 examiner wrote that it was less likely than not that tinnitus was related to any event during active duty service, including in-service noise exposure. The examiner gave the following rationale for her opinion: "Veteran today reported onset [of tinnitus] was over 30 years ago. However on Notice of Disagreement received [February 2014] [the Veteran] noted that tinnitus began only around 10 to 15 years prior to that date, which is a discrepancy and well past exit from service in 1963. Tinnitus would have started closer to the dates of noise exposure in service." In a post-remand brief, dated January 2018, the Veteran's representative argues that the October 2017 audiologist's opinion on tinnitus is inadequate because the stated rationale for examiner's conclusion was based solely on her unfavorable assessment of the Veteran's credibility. In Sizemore v. Principi, 18 Vet. App. 264 (2004), the United States Court of Appeals for Veterans Claims (Court) vacated a Board decision denying the appellant's claim for service connection for posttraumatic stress disorder (PTSD). One of the reasons for the Court's decision was that the Board erred in relying on the opinion of a VA psychiatrist because of the following rationale for the examiner's opinion: "[The appellant's] stressors in Vietnam apparently have not been substantiated and although it is likely that he was involved in some combat activities, it seems a bit unusual that an artillery man would have personally killed eleven enemy soldiers unless they were being overrun. In an action of that nature, I think it would probably have resulted in either some award being given to him or at least some documentation being discoverable with respect to that unit's heavy combat activity." Id. at 275. The Court found that it was the Board's responsibility, not the examiner's, to make this credibility determination: "To the extent that the examining psychiatrist is expressing an opinion on whether the appellant's claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter." Id. "When an examiner makes factual findings and legal determinations, a new examination may be necessary 'to remove whatever taint there may be from the examiner's overreaching.'" Townsend v. Shinseki, No. 12-0507, 2013 U.S. App. Vet. Claims LEXIS 789, *17-18 (Vet. App. May 20, 2013). The October 2013 examining audiologist engaged in similar factfinding when she rejected the possibility of a relationship between tinnitus and in-service noise exposure based entirely on her assessment of the significance of an apparently inconsistent statement from the Veteran. Since the examiner provided no other explanation for her conclusion, the Board must remand this case for a new opinion. A remand might not be necessary if, for example, the examiner had offered an opinion that the Veteran's statement was inconsistent with specific scientific or medical evidence within her area of expertise. Such an opinion would be within the proper function of a VA examiner: "to provide VA adjudicators, who generally lack the expertise and competence to opine on medical matters, with the medical information and analyses necessary to decide a claim." Id. at *16 (citations omitted). The Veteran's representative also argues that the October 2017 examination report was inadequate because the examiner offered no opinion on the likelihood that the Veteran developed tinnitus as a result of a her bilateral hearing loss. The representative described hearing loss as a service-connected disability, and the October 2017 examiner appeared to agree. But, as noted above, VA has not granted service connection for a hearing loss disability and, according to the currently available information in the claims file, VA has never received a formal claim from this Veteran for service connection for a hearing loss disability. The Court recently rejected the argument that secondary service connection under 38 C.F.R. § 3.310(a) is prohibited unless the purported primary condition was service connected, or diagnosed, at the time the secondary condition was incurred. See Frost v. Shulkin, ___ Vet. App. ___, ___, No, 15-3102, 2017 U.S. Vet. Claims LEXIS 1747, at *11-12 (Nov. 30, 2017). However, the Court's opinion in Frost still appears to prohibit the grant of any claim for service connection on a secondary basis before there is a decision determining that the primary condition is also service-connected. "The temporal prerequisite affiliated with [38 C.F.R.] § 3.310(a) is one of basic logic that the Court has referenced in previous cases, i.e., 'there must be a primary service-connected condition for a claimant to establish entitlement to secondary service connection.' . . . In other words, at the time that any decision establishing entitlement to secondary service connection is rendered, there must be a primary service-connected condition." Frost, 2017 U.S. Vet. Claims LEXIS 1747, at *12 (quoting Smith v. Shinseki, 24 Vet. App. 40, 49 (2010)) (emphasis in original). Thus, VA cannot grant service connection for tinnitus as secondary to service-connected hearing loss until after issuing a decision finding that hearing loss is a service-connected disability. Before VA can grant service connection for hearing loss, the Veteran must file a specific claim using a form prescribed for that purpose by the Secretary. See 38 C.F.R. § 3.151(a) (2017). The Board therefore invites the Veteran and his representative to file a hearing loss claim using the appropriate form. According to the Court's opinion in Frost, it is not essential that this form be filed before the AOJ obtains the post-remand medical opinion in this tinnitus case. Thus, for the purpose of administrative efficiency, the Board will instruct the post-remand examiner to provide an opinion as to whether the Veteran's tinnitus is the secondary result of the hearing loss disability indicated by the October 2017 examination report. However, the Veteran and his representative are advised that VA's ability to grant service connection for tinnitus on a secondary basis depends on their filing of an appropriate application for service connection for hearing loss. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the claims file to the audiologist who completed the hearing loss and tinnitus report in October 2017. If the October 2017 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file and then provide an addendum report which responds to the following questions: (a) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that current tinnitus is related to any disease, injury or event during the Veteran's active duty service, to include exposure to the gun on the Coast Guard cutter on which the Veteran served on active duty. The examiner should provide a complete rationale explaining the reasons for his or her opinion. In the rationale, the examiner should address the Veteran's statement that his tinnitus began during his active duty service. The examiner should not attempt to assess the Veteran's general credibility or to weigh this statement against other statements made by the Veteran concerning the timing of the onset of his initial tinnitus symptoms. The examiner may, however, indicate an opinion as to whether the Veteran's statement is consistent or inconsistent with the medical evidence. If the examiner believes that the Veteran's statement that the onset of his tinnitus occurred in service is inconsistent with the medical evidence, the examiner should thoroughly explain the medical and scientific reasons for that conclusion. (b) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that any current tinnitus was caused by, or is aggravated by, the hearing loss disability indicated by the October 2017 audiology examination report. If the hearing loss disability aggravated (i.e. permanently worsens) the Veteran's tinnitus, the examiner should identify the percentage of disability which is attributable to the aggravation. The examiner should thoroughly explain the reasons for his or her conclusion. 2. The AOJ must ensure that all of the examination reports and opinions requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. After undertaking any other development deemed appropriate, readjudicate the issue of entitlement to service connection for tinnitus. The AOJ may consider whether to grant this benefit as secondary to a bilateral hearing loss disability only if the Veteran files a separate claim for service connection for hearing loss and that claim is granted. If any benefit sought 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 record is returned 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). 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) (2017).