Citation Nr: 0815116 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-30 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alex Crisafulli, Associate Counsel INTRODUCTION The veteran had active military service from May 1946 to March 1948. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2006 rating decision of the Regional Office (RO) of the Department of Veterans Affairs in St. Paul, Minnesota. A motion to advance this case on the Board's docket was received by the Board on January 23, 2008. This motion was granted by the Board on April 21, 2008 due to the veteran's advanced age. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). 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 A review of the record with respect to the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus discloses a need for further development prior to final appellate review. The veteran filed a claim for service connection for bilateral hearing loss and tinnitus in March 2006. The veteran asserts that while working as an aviation support equipment technician in the Navy he was constantly exposed to frequent gunfire that caused his ears to pop as a loader of 5 inch guns on a light cruiser. Often times the veteran was around multiple guns firing at once. He first noticed ringing in his ears in August 1947. The ringing worsened and continued throughout his time in service, and he claims he lost about half of his hearing while in service. He states that he was not provided with hearing protection. The veteran was afforded a VA examination in May 2006. The examiner reported mild to moderately severe sensorineural hearing loss for the right ear and mild to moderately severe sensorineural hearing loss in the left ear. The examiner could not determine the etiology of the veteran's hearing loss without resorting to "mere speculation." These findings were made without the examiner having had access to the veteran's service medical records. In June 2006, an addendum was added to the May 2006 VA examination with the examiner having reviewed the veteran's service medical records. The examiner noted the veteran had normal hearing upon separation according to a watch click, coin click, whispered voice, and spoken test for each ear individually. There was also no disease of the ears upon separation. The examiner concluded that based on the veteran's normal hearing examination and lack of tinnitus at separation, it was less than likely that current hearing loss and tinnitus were related to his time in service. The veteran's occupational noise exposure as a police officer and truck driver were listed as potential factors, along with advanced age and recreational noise exposure, for his current disabilities. In his August 2006 notice of disagreement, the veteran asserts that following his service in the Navy he served as a police officer in a town of 4,500 for 15 years. He then worked 12 years, until retirement, at a newspaper office in maintenance. According to the veteran, noise exposure at both jobs was very limited. In the veteran's September 2006 VA Form 9, he states that he never worked as a truck driver. The VA examiner concluded it was less than likely that the veteran's current hearing loss and tinnitus were related to his time in service as a result of the veteran demonstrating normal hearing upon examination at separation. However, the lack of evidence of hearing loss during service or immediately following service is not to be construed as fatal to the veteran's claim. See Hensley v. Brown, 5 Vet. App. at 157. Rather, an opinion must be made whether there is competent evidence which attributes post-service hearing loss to service. Id.; see also 38 C.F.R. § 3.303(d). Furthermore, the examiner relied on inaccurate facts in reaching his conclusion. It was noted that the veteran's occupational time as a truck driver could have been a factor contributing to his current hearing loss or tinnitus. The veteran asserts that he never held a job as a truck driver and that he was not exposed to much noise in his job as a police officer. In light of such discrepancies, the Board finds that the veteran should be scheduled for another VA audiometric examination. The veteran claims he worked as an aviation support equipment technician in the Navy. Because this information is not available in the veteran's service records, the Board requests that his personnel file be made available for review. Accordingly, the case is REMANDED for the following action: 1. Request the veteran's personnel file. 2. Schedule the veteran for VA audiometric examination. The claims folder must be provided to the VA examiner for review in conjunction with the examination, and the examination report should reflect that it was reviewed. The examiner should take a history from the veteran that includes a report of all post-service employment and recreational activities. After conducting the examination and reviewing the record, the examiner should then provide an opinion as to whether any current hearing loss or tinnitus is more likely than not (i.e., probability greater than 50 percent), at least as likely or not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to his active service. A detailed rationale should be provided for all opinions. If it cannot be determined whether the veteran currently has hearing loss or tinnitus that is related to service on a medical, scientific basis and without invoking processes related to guesses or based upon mere conjecture, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant 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 Supp. 2007). _________________________________________________ S. L. Kennedy 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).