Citation Nr: 1606843 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 10-33 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969, which includes service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction was subsequently transferred to the RO in Portland, Oregon. In his July 2010 substantive appeal, the Veteran requested a hearing before the Board. A videoconference hearing was scheduled for July 2015; however, in June 2015, the Veteran withdrew his hearing request. Therefore, the Board deems his hearing request withdrawn. See 38 C.F.R. § 20.704(e) (2015). The Board notes that the Veteran also filed a notice of disagreement (NOD) with the September 2009 rating decision regarding his claim for an increased rating for posttraumatic stress disorder (PTSD). However, in a May 2013 rating decision, the RO increased the rating for the Veteran's service-connected PTSD to 100 percent. The Board finds that the May 2013 rating decision constituted a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Moreover, the Veteran did not perfect the appeal by filing a substantive appeal for that particular issue following the issuance of the July 2010 statement of the case. Therefore, that issue is not on appeal, and no further consideration is needed. This appeal was processed using the Virtual VA paperless claims processing system and Veterans Benefit Management System (VBMS). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran has contended that he has bilateral hearing loss and tinnitus as a result of noise exposure during his service in Vietnam. See May 2009 statement in support of claim. Specifically, the Veteran reported that he was exposed to artillery, grenades, claymore mines, and mortars without hearing protection. See August 2009 VA examination report. He has indicated that his hearing loss and tinnitus first began during service. See December 2015 appeal brief. He has also denied having post-service recreational and occupational noise exposure. The Veteran was afforded a VA examination in August 2009 in connection with his claims. The examiner noted the Veteran's lay statements regarding his noise exposure in service and the onset of his symptoms of hearing loss and tinnitus. The examiner diagnosed him asymmetrical sensorineural hearing loss. She reported that the configuration of audiogram results was not consistent with the accumulation of military noise exposure. She also stated that there was no hearing loss during service because the Veteran's enlistment and separation examinations showed normal hearing bilaterally. However, the examiner indicated that she could not provide an etiology opinion regarding the Veteran's hearing loss and tinnitus without resorting to mere speculation. As rationale, the examiner explained that additional testing was first required to rule out retrocochlear pathology due to the significant asymmetry in the Veteran's hearing levels. The August 2009 VA examiner's rationale relied, in part, on the absence of documented in-service hearing loss and reports of tinnitus. However, when hearing loss is not demonstrated during service, service connection may still be established if the evidence shows that the current hearing loss is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Moreover, the record does not show that the Veteran was afforded an evaluation to rule out retrocochlear pathology, which the August 2009 examiner indicated was necessary in order to provide an opinion without resorting to speculation. The Board does acknowledge that there is an October 2009 private medical opinion from Dr. L.L.(initials used to protect privacy) in which she diagnosed the Veteran with mild to moderate sensorineural hearing loss from 6000 to 8000 Hertz in the right ear and mild to severe sensorineural hearing loss from 3000 to 8000 Hertz in the left ear. Dr. L.L. noted that the Veteran's sensorineural hearing loss and continuous tinnitus were most consistent with loud noise exposure. She opined that the Veteran's sensorineural hearing loss and tinnitus were at least as likely as not due to noise exposure during his military service. In so finding, Dr. L.L. reported that the sensorineural origin of the Veteran's hearing loss and its "configuration can be contributed to auditory trauma." However, the Board notes that Dr. L.L. did not discuss the fact that the Veteran did not address the in-service audiometric findings, the asymmetry in the Veteran's hearing levels, or the potential retrocochlear pathology identified by the August 2009 VA examiner. Therefore, the Board finds that remand is necessary to obtain an additional medical opinion to determine the nature and etiology of any current hearing loss and tinnitus. Moreover, the Veteran has reported that he received treatment for his hearing loss at the Sacramento VA Medical Center (VAMC) in September 2009. He has contended that the September 2009 VA physician attributed his hearing loss to his military service. See July 2010 statement in support of claim. The medical evidence of record from the Sacramento VAMC is dated from December 2009 to May 2010. Therefore, the AOJ should obtain any outstanding VA medical records. In addition, the Board notes the VBMS file contains an October 2010 private audiology evaluation that was not considered by the Agency of Original Jurisdiction (AOJ). The Veteran and his representative Veteran have not submitted a waiver of the RO's initial consideration of the evidence. As such, the additional evidence must be referred to the AOJ for review and preparation of a SSOC, if a grant of the benefit sought is not made. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hearing loss and tinnitus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any pertinent and outstanding VA medical records, to include any records from the Sacramento VAMC dated in September 2009. 2. After completing the preceding development, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, to include any additional testing was required to rule out retrocochlear pathology for hearing loss and tinnitus. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is advised that the Veteran's awards and decorations include the Combat Infantry Badge. Therefore, any combat-related noise exposure is conceded. The examiner is also advised that the absence of in- service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss and tinnitus manifested in or is otherwise etiologically related to his military service, including noise exposure therein. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to any current hearing loss. In rendering this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (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 conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. The case should then be reviewed by the AOJ on the basis of additional evidence received since the statement of the case. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J.W. ZISSIMOS 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).