Citation Nr: 0812773 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-27 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and N.L. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from February 1964 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which denied service connection for bilateral hearing loss and tinnitus. In February 2008, the veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Acting Veterans law Judge (VLJ). A transcript of that hearing has been associated with the veteran's VA claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that these issues must be remanded for further evidentiary development. In order to establish service connection for bilateral hearing loss and tinnitus there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The evidence of record contains a current diagnosis of bilateral hearing loss and tinnitus. Hickson element (1) has therefore been satisfied with respect to both issues. With respect to Hickson element (2), in-service disease or injury, the veteran has alleged exposure to artillery fire. Since the veteran was assigned as a mechanic assistant to an artillery unit, it is reasonable to assume that there was noise exposure. Hickson element (2) has arguably been met. With respect to Hickson element (3) the only medical nexus opinion of record comes from March 2006 VA examination. In this opinion the examiner stated that the veteran's hearing loss and tinnitus are not related to his military service but instead are a product of his post-service noise exposure. The examiner specifically cited to the veteran's work as a heavy equipment mechanic for 4 months and a foundry welder for 8 years, among various other jobs. Noise exposure from recreational shooting and loud recreational equipment such as motorcycles and personal watercraft were also cited. During the February 2008 hearing, the veteran stated that the VA examiner's opinion was based on a flawed premise. He alleged that the post-service employment history relied upon by the examiner was factually inaccurate. Specifically, he argued that he has never operated a personal watercraft and has ridden a motorcycle only 5-6 times. See February 2008 hearing transcript, page 11. The veteran further stated that he worked in the foundry for two years, not eight as claimed by the VA examiner. Id at 10; see also February 26, 2008 lay statement. Moreover, and of greater significance to the veteran, he testified that he worked at the foundry after hours and when the heavy machinery had been shut down. See February 2008 hearing transcript, page 9. As demonstrated above, the history of post-service noise exposure provided by the VA examiner is at odds with the history provided by the veteran. Upon reviewing the March 2006 examination report, the Board can find no basis for the history that was provided. The first evidence of the veteran's post-service employment history was added to his claims folder nearly two years after the March 2006 examination report. Accordingly, the Board believes an additional examination is required. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."]. Accordingly, the case is REMANDED for the following action: 1. VBA should schedule the veteran for an audiology examination. The reviewer should interview the veteran and take a detailed history of his post-service noise exposure. An opinion as to whether the veteran's bilateral hearing loss and tinnitus are at least as likely as not (a 50 percent probability or greater) related to his military service must also be provided. A report should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. If the benefits sought on appeal remain denied, in whole or in part, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 Supp. 2007). _________________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).