Citation Nr: 1136873 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 07-20 984A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia 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 WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision rendered by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. 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 Board finds that these matters must be remanded in order to afford the Veteran a VA examination and to obtain evidence as to the most likely etiology of the hearing loss and tinnitus disabilities. In addition, the Board takes this opportunity to clarify the Veteran's duty locations during active duty service. The Veteran alleges that he was exposed to acoustic trauma as a result of a temporary duty detail in Vietnam. In developing these claims, the RO has not verified any service in Vietnam. During the hearing before the undersigned, he reported temporary duty service in Vietnam at the Ben Hoa Air Force Base during the Tet Offensive. He reports that he was exposed to rocket attacks "every night or every other night" during the "three month period of time there." (See Transcript at 3.) He describes one rocket attack in the "latter part of February" that resulted in continuous tinnitus. (Transcript at 4.) His DD-214, however, does not show that he was in receipt of awards or decorations based on any Vietnam service. In addition, a request to the National Personnel Records Center dated in February 2006 indicated that there was "no evidence in this Veteran's file to substantiate any service in the Republic of Vietnam." The Veteran's DD-214, however, does indicate one year and ten months of foreign and/or sea service. It does not document service in Vietnam. His service personnel records document foreign service in the Philippines from September 17, 1967, to February 12, 1969. Significantly, they also include a Foreign Service Summary that indicates the following: TDY to SEA fr 4 Jan68 - 4March68 (50 days) TDY to SEA (19Jul68 - 22Sep68) 68 days, TDY Turkey & Ger (26Jun - 7Aug) 44 days. The Board notes that "SEA"denotes "South East Asia;" an area that includes the Republic of Vietnam. Moreover, while the Veteran's service treatment records show treatment at the Clark Air Force Base in the Philippines in October and December 1967, significantly, they also include one record dated January 19, 1968, that documents treatment for a urethral condition at the Ben Hoa 3d Tac Dispensary. It includes the reference "TDY from Clark AFB, P.I." and a TDY No. 96274. The Board finds that this record, in conjunction with the service personnel records showing "TDY to SEA" and the Veteran's credible testimony, is sufficient to establish service in Vietnam. To date, however, he has not been afforded a VA examination in connection with his claim. VA's duty to assist the Veteran includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the Veteran's service discharge examination in October 1970, he denied any current hearing loss disorder. An audiometric examination revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 15 LEFT 25 10 15 15 20 VA outpatient treatment records indicate that the Veteran receives prescription hearing aids. A November 2003 record described the Veteran's hearing loss as "normal hearing thru 750hz sloping to a moderately severe SNHL AU." Hence, there is evidence of a current hearing loss disability. Moreover, the Veteran has provided testimony as the existence of a current disability manifested by tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition.). In addition, the Veteran has submitted post-service employment audiometric examinations dated from October 1979 to November 1982. These examination results appear to show puretone threshold loss less severe than those found on service discharge examination. The Board, however, is precluded from exercising its own unsubstantiated medical opinion. As such, the Board finds that a VA examination is warranted to obtain evidence as to the most likely etiology of the hearing loss and tinnitus disabilities. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA audiologic examination to determine the nature, extent, and etiology of any hearing loss and tinnitus disabilities. Prior to the examination, the claims folder must be made available to the examiner for review. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in the examination report. The examiner should state whether the Veteran has current hearing loss and tinnitus disabilities. Audiologic testing must be performed. Thereafter, the examiner should provide an opinion as to whether any (1) hearing loss disability and (2) tinnitus disability is at least as likely as not (i.e., a 50 percent probability or better) causally or etiologically related to his military service, to include temporary duty service in the Republic of Vietnam. In rendering the opinion(s), the examiner should describe the significance of the audiologic threshold results as shown on the October 1970 separation examination and state whether they constitute evidence of a hearing loss disability. The examiner should also describe the significance of the audiologic thresholds as shown on the post-service examinations. The examiner is specifically advised that in rendering any opinions, he/she should consider the relevant lay testimony of record describing the Veteran's current and past symptoms and any continuity of symptomatology. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. 2. In the event that the Veteran does not report for the aforementioned VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. In the event that the Veteran reports for the VA examination, the RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond before the case is returned to the Board for further appellate action. 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. 2010). _________________________________________________ ROBERT E. SULLIVAN 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).