Citation Nr: 1127166 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-04 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from September 1972 to September 1976. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In connection with his appeal, the appellant was scheduled for a Board hearing to be held in July 2009. Although he was notified of the time and date of the hearing by mail, he failed to appear and neither furnished an explanation for his failure to appear nor requested a postponement or another hearing. Absent further request from the appellant or his representative, the Board will proceed with consideration of the appeal based on the evidence of record. 38 C.F.R. § 20.702(d) (2010). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks service connection for bilateral hearing loss and tinnitus. He argues that he developed bilateral hearing loss and tinnitus secondary to noise exposure in service. The appellant's service treatment records show that at his August 1972 military enlistment medical examination, he denied having or ever having had ear trouble or hearing loss. On clinical evaluation, the appellant's ears were normal. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 20 LEFT 15 10 10 10 10 In-service treatment records show that in September 1972, the appellant underwent examination for purposes of determining his fitness to perform duty at sea and/or foreign service. During the examination, he reported a history of "1968 [left] ear ringing." No further explanation or diagnosis was provided. The remaining service treatment records are entirely negative for complaints or findings of hearing loss or tinnitus. At his August 1976 military separation medical examination, the appellant denied having or ever having had hearing loss or ear trouble. On clinical evaluation, the appellant's ears were normal. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 LEFT 5 0 0 0 5 In August 2006, the appellant submitted an original application for VA compensation benefits seeking service connection for bilateral hearing loss and tinnitus. In connection with his claim, the appellant was afforded a VA medical examination in January 2007, at which he told the examiner that his tinnitus had had its onset in service. The appellant further reported that he had a history of noise exposure in service while training with weapons and explosives. He denied post-service occupational or recreational noise exposure. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 25 75 LEFT 5 10 0 25 65 After examining the appellant and reviewing his claims folder, the examiner noted that the pattern of the appellant's hearing loss was consistent with noise exposure which the appellant claimed had occurred in service. The examiner, however, indicated that it was less likely as not that the appellant's hearing loss and tinnitus had been incurred in service as he had exhibited normal hearing acuity at service separation. After carefully reviewing the record on appeal, the Board finds that another VA medical examination is necessary. First, the Board notes that although the examiner in January 2007 concluded that the appellant's hearing loss and tinnitus were not related to his active service because hearing acuity at separation was shown to be normal, he did not provide further rationale such as an explanation as to how hearing loss following acoustic trauma generally presents. Because the Board is prohibited from making conclusions based on its own medical judgment, the record must be supplemented. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Moreover, the Board notes that since the January 2007 VA medical examination, the RO has compiled additional records which may prove helpful to the next examiner in determining the etiology of the appellant's current hearing loss in tinnitus. That additional evidence includes private clinical records dated from April 1996 to April 2006. In pertinent part, these records show that that appellant was seen on several occasions during this period in connection with his complaints of hearing loss and tinnitus. On multiple occasions, the appellant dated the onset of his bilateral tinnitus to an episode of childhood trauma. See e.g. records of April 1996, January 1997, and April 1997. Additionally, these records show that the appellant reported a history of acoustic trauma apparently unrelated to service. See e.g. April 1997 record noting a history of noise exposure from trap shooting. These records also include multiple audiometric tests results. Given the nature of the question at issue in this case, these previously undisclosed records may prove useful to the examiner in determining the etiology of the appellant hearing loss and tinnitus. Finally, the Board notes that it has considered the written arguments submitted by the appellant's representative in May 2011 to the effect that a remand of this matter is required as the RO "failed to apply" directives noted in VA Fast Letters 10-35 (September 2, 2010) and 10-48 (November 1, 2010), as well as VA Training Letter 09-05 (August 5, 2009). As a preliminary matter, the Board observes that these letters were issued by VBA to provide guidance in the adjudication of claims involving hearing loss and tinnitus. They are not substantive rules which grant additional rights or effect a change in existing law or regulation, nor does a bare allegation of "failure to apply" the administrative guidance contained in these letters require a remand, as the appellant's representative claims. In any event, the Board has reviewed these letters, as well as the actions of the RO, in the context of the facts of this case and can identify no substantive defect which has prejudiced the appellant. For example, the appellant's MOS is not among those listed in the Department of Defense's Duty MOS Noise Exposure Listing. In any event, the appellant was, in fact, afforded a VA medical examination at which the examiner expressly considered the appellant's allegations of in-service noise exposure. Under these circumstances, the Board finds no basis to take further action based on the arguments raised by the appellant's representative. Accordingly, the case is REMANDED for the following action: 1. The appellant should be afforded a VA medical examination for the purpose of clarifying the etiology of his current bilateral hearing loss and tinnitus. The claims file must be made available to the examiner for review in connection with the examination. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that any current hearing loss or tinnitus identified on examination is causally related to or aggravated by the appellant's active service or any incident therein, including reported exposure to acoustic trauma, as opposed to some other factor or factors, including post-service noise exposure. A complete rationale for the opinion should be provided. In providing the requested rationale, the examiner should specifically discuss the evidence of record. As set forth above, a prior VA examiner has concluded that the appellant's current hearing loss and tinnitus are not causally related to his active service in light of the normal hearing acuity he exhibited at service separation. In the event the examiner concurs with this conclusion, he or she is asked to explain why normal hearing acuity at separation supports such a conclusion. 2. After conducting any additional development deemed necessary, the RO should readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, if in order. 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 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. 2010). _________________________________________________ James L. March 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) (2010).