Citation Nr: 0813544 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-03 228A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from January 1951 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for bilateral hearing loss and tinnitus. In October 2007, the veteran testified at a videoconference hearing at the RO, before the undersigned Veterans Law Judge. In April 2008, this case was advanced on the Board's docket, due to the veteran's advanced age, pursuant to 38 U.S.C.A. § 7107 and 38 C.F.R. § 20.900(c). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND The veteran contends he has bilateral hearing loss and tinnitus as a result of exposure to noise trauma in service. He claims that he while in Korea for one year he was a tank commander, and upon return to the U.S. he was a rifle instructor and a pistol instructor, and that he was never provided any hearing protection. Service medical records are negative for any report of or finding of bilateral hearing loss or tinnitus. The Board acknowledges that the lack of any evidence showing that the veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court has held that, where there is no evidence of the veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The first post-service evidence of bilateral hearing loss was a March 1982 private treatment record, which showed that the veteran had a hearing loss disability which does meet the criteria in 38 C.F.R. § 3.385. On VA examination in September 2005, the veteran reported he first noticed hearing loss in the 1970s. He apparently first reported he noticed having tinnitus in the 1970s, but then later reported he heard it during service. Upon audiometric testing, pure tone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) were: 45, 70, 90, and 95, and pure tone thresholds for the left ear, were: 45, 80, 90, and 100. Speech recognition scores were 24 percent in the right ear and 8 percent in the left ear. The examiner noted he spent two hours testing the veteran and the results were "very questionable". It was noted that, when he was re-tested on several frequencies, his responses changed (worsened) by 10 to 20 dB. The examiner noted that the veteran heard well during the interview, but that his speech recognition was "extremely, extremely poor" and that he would not have been able to respond appropriately with that severe a level of speech recognition. The examiner did not think the results were reliable, and indicated he was "not able to make an opinion on this case based on the inconsistencies in testing and history". The examiner noted that, in the audiometric results from 1982, the veteran's hearing loss "did not look like a noise induced hearing loss but more of a hereditary loss", and that the results from the 2005 VA examination looked "like an extension of that type of loss, if the tests are accurate". Submitted by the veteran was a January 2006 letter from a Dr. F., of Wind River Ear, Nose & Throat, who reported that the veteran was a "patient", and had been evaluated for bilateral sensorineural hearing loss. Dr. F. indicated that the veteran's audiometric testing was consistent with that diagnosis, with the "most likely cause being loud noise exposure", noting that the veteran described "significant exposure during his military service". It is unclear whether there may be additional records available from Dr. F., including any reports of audiometric testing or treatment. Thus, on remand, the veteran should be asked to assist in obtaining any such records. 38 U.S.C.A. § 5103A (a),(b); 38 C.F.R. § 3.159 (c). With regard to the medical evidence of record, the Board observes that there is one medical opinion which goes against the veteran's claim (i.e., the VA examination report from 2005), and there is one medical opinion which appears to support his claim (the February 2006 letter from Dr. F.). Although further delay of this matter is regrettable, in order to attempt to reconcile the medical evidence of record, as well as to attempt to clarify the exact nature of the veteran's bilateral hearing loss and tinnitus, and whether such disabilities were caused by service, this case must be remanded for further evidentiary development, including another VA examination with opinion. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. With any assistance needed from the veteran, obtain complete records for the veteran from Dr. F. of Wind River Ear, Nose & Throat, related to any treatment he received for bilateral hearing loss or tinnitus, and to specifically include any results of audiometric testing. A negative response should be requested if no such treatment records are available. 2. Schedule the veteran for a VA ear and audiometric examination to determine the nature and etiology/onset of any current hearing loss and tinnitus. All indicated tests and studies should be performed, and all clinical findings reported in detail. The claims folder, to include a copy of this Remand, must be made available to the medical examiner for review, and the examination report should indicate whether such review was performed. The examiner should be made aware of the veteran's noise exposure before, during, and after service. a. The examiner should specifically be asked to review the September 2005 VA examination report, the February 2006 letter from Dr. F ., and any additional records obtained from Dr. F., and should comment on the significance of any findings made. b. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to a 50-50 degree of probability) that any current hearing loss and/or any current tinnitus had its onset in service or is causally related to excessive noise exposure in service, or whether such onset or causation is unlikely (i.e., less than a 50-50 probability. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. If it cannot be determined whether the veteran currently has hearing impairment and/or tinnitus which is related to his active service, on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the veteran's satisfaction, he should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).