Citation Nr: 0813286 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-33 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran served on active duty from September 1964 to August 1966. He served in the Republic of Vietnam from August 1965 to August 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision rendered by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the veteran if further action is required. REMAND After a review, the Board observes that further development is required prior to adjudicating the veteran's claims. The veteran's essential contention is that he was exposed to loud noise from artillery and mortar attacks during his service in the Republic of Vietnam, and that his claimed hearing and tinnitus disabilities resulted from such exposure. At the hearing, the veteran recalled that he experienced a "sizzling sound" in his right ear after the explosion of a mortar, which had fallen close to his squad. The "sizzling sound" apparently became very pronounced after he married his wife. At that time, he also noticed a decrease in his hearing. The veteran is competent to describe his exposure to loud sounds, and he is also competent to testify as to his experience of ringing in the ears in service and after service. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). Moreover, in an unrelated claim, the RO verified the veteran's exposure to mortar attacks based on Order of Battle information and an April 1966 Combat Operation after Action Report for the 1st Cavalry Division (Airmobile). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater, or the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The report on the veteran's separation physical in August 1966 notes that audiometric testing at that time revealed auditory thresholds of 0 decibels in all frequencies, which when converted amounted to the following decibels in both ears: 15 at 500 Hertz; 10 at 1000 and 2000 Hertz; and 5 at 4000 Hertz. (Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI)). After service, the veteran underwent a VA examination in April 2004. Audiometric testing did not show that the veteran had § 3.385 bilateral hearing loss. The VA examiner also opined that the veteran's hearing loss and tinnitus were not at least as likely as not related to military service because the veteran's separation physical showed normal puretone thresholds from 500 to 4000 Hertz. Thereafter, the veteran submitted an October 2005 audiogram from the Tesoro- Mackie Clinic that was not interpreted. The Board is prohibited from interpreting graphical representations of audiometric data. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Kelly v. Brown, 7 Vet. App. 471, 474 (1995). The Board, however, observes that on its face, the private audiogram shows graphical representations of audiometric data that suggest that the veteran meets the threshold requirement for a hearing impairment in both ears. The Board notes that the rationale the VA examiner provided appears to have not taken into account VA's recognition that 38 C.F.R. § 3.385 does not require the presence of hearing loss disability in service or otherwise limit the circumstances under which service connection may be granted for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the veteran contends that his exposure to loud noise in service resulted in the bilateral hearing loss disability manifested years later. Thus, given the veteran's history of military noise exposure and private audiogram results that suggest a current bilateral hearing impairment, the Board finds that the veteran should be afforded a new VA audiological examination to assess whether any bilateral hearing loss and tinnitus found on examination is etiologically related to his service. Also, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The September 2003 VCAA notice did not advise the veteran that he should provide any evidence in his possession that pertains to his bilateral hearing loss and tinnitus claims. The veteran has also not been advised of the disability-rating and effective-date elements of his claims. Thus, notice addressing this matter should be provided on remand. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send the veteran another VCAA letter under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007) that includes notice that he should submit any evidence in his possession that pertains to the bilateral hearing loss and tinnitus claims Also, advise the veteran that a disability rating and effective date will be assigned if service connection is awarded, to include an explanation as to the information or evidence needed to establish such, as outlined by the Court in Dingess/Hartman. 2. The RO/AMC should schedule the veteran for a VA audiological examination by an examiner who has not previously examined the veteran to determine the nature of any current bilateral hearing loss and tinnitus, and to provide an opinion as to their possible relationship to service. The claims file and a copy of this REMAND should be provided to and reviewed by the audiological examiner. The audiological examiner should accept as true that the veteran was exposed to noise from artillery and mortar attacks during the Vietnam War. The audiological examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss and tinnitus are related to an incident of the veteran's military service, including exposure to noise from artillery and mortar attacks during the Vietnam War. The examiner should include a discussion of the August 1966 separation physical. 3. Thereafter, the RO/AMC should readjudicate the claims. If the benefits sought on appeal remain denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran 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 case 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). _________________________________________________ WAYNE M. BRAEUER 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).