Citation Nr: 1100486 Decision Date: 01/05/11 Archive Date: 01/14/11 DOCKET NO. 08-39 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from April 1974 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Veteran presented testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. REMAND The Veteran contends that he currently suffers from hearing loss and tinnitus as a result of acoustical trauma sustained due to excessive noise exposure while serving as a gunner's mate during his period of active military service. Review of the record reveals that this case must be remanded for further evidentiary development before the Board may proceed to evaluate the merits of the claims. The Veteran's DD Form 214N lists his primary and secondary military occupational specialty (MOS) in service as gunner's mate (missiles), and guided missile launch systems maintenance technician. The Board notes that frequent exposure to loud noise would appear to be consistent with the circumstances and conditions of such service, and we find the Veteran's competent account of such noise exposure to be credible. See hearing transcript, page 9. In connection with his claims, the Veteran underwent audiological examinations in April 2007 and August 2007. However, neither audiological examination was adequate, for reasons explained below. In the April 2007 audiological examination report, the examiner wrote that the Veteran reported a history of noise exposure in service, denied post-service noise exposure, and reported having suffered from bilateral tinnitus since leaving service. The examiner diagnosed the Veteran with high frequency sensorineural hearing loss bilaterally; and bilateral, subjective, constant, and severe tinnitus since service. The examiner then concluded that it is not likely that hearing loss or tinnitus had its origin in service because the Veteran's service treatment records (STRs) show hearing within normal limits at the time of discharge from active duty and there was no documentation of tinnitus in the Veteran's STRs, respectively. In the August 2007 audiological examination report, the examiner wrote that the Veteran reported that his hearing loss began gradually over 15 years before and tinnitus began 15 years before the examination. The Veteran also reported in-service noise exposure, and denied having any disorders of the ear and noise exposure after service. The examiner concluded that the Veteran's hearing loss was not likely caused by or related to in- service noise exposure because he had normal hearing bilaterally upon discharge from the military. The examiner further concluded that the Veteran's tinnitus was not likely caused by or related to his in-service noise exposure, because it reportedly began after his military service. In regard to claimed hearing loss, although the April 2007 VA audiological examiner clearly considered whether the Veteran's current hearing loss disability had its onset in service, she did not address the relative probability that acoustic trauma due to excessive noise exposure in service caused a delayed onset of hearing loss after service. See, e.g., hearing transcript, page 6. Similarly, although the Board observes that the August 2007 VA audiological examiner specifically concluded that the Veteran's hearing loss was not likely caused by in-service noise exposure, the rationale for her conclusion was solely that the Veteran had normal hearing bilaterally at discharge. She also did not adequately address the Veteran's contention that in- service noise exposure resulted in a delayed onset of hearing loss, as he contends. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The U.S. Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In regard to tinnitus, the Board notes that the April 2007 examiner based her conclusion that tinnitus was not likely caused by or related to service solely on the fact that there was no documentation of tinnitus in the Veteran's STRs, although, at the examination, the Veteran had competently reported that he experienced tinnitus since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony can be rejected only if found to be mistaken or otherwise deemed not credible); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the Board may weigh the absence of contemporaneous evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Court held that, once VA undertakes the effort to provide an examination, it must provide an adequate one. In the present case, the examination reports are not adequate because neither examiner adequately addressed the contention by the Veteran that his hearing loss had a delayed onset as a result of acoustic trauma sustained due to in-service noise exposure; the April 2007 examiner did not consider the Veteran's lay statements in providing her conclusion about the relative probability that tinnitus was related to service; and the August 2007 examiner did not adequately address the relative probability that tinnitus may have had a delayed onset as a result of acoustic trauma sustained due to in-service noise exposure. Further, because it appears from the examination reports that the Veteran may have provided inconsistent statements regarding the onset of his hearing problems and tinnitus, the Board notes that clarification from the Veteran would be helpful in resolving the matters on appeal. Therefore, in consideration of the foregoing, a remand for another examination and medical nexus opinion is necessary in order to decide the Veteran's claims on the merits. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate examination for his claimed hearing loss and tinnitus. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. In addressing the questions below, the examiner's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior audiological examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder and examination and interview of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current hearing loss or tinnitus was caused or aggravated by active military service, to include any acoustic trauma or symptomatology shown therein; or that sensorineural hearing loss or tinnitus manifested in the year following discharge from active service; OR whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent.) b. The examiner should discuss evidence contained in the Veteran's STRs and post- service lay and medical evidence as well as any medical principles in support of his or her conclusions. In regard to the lay evidence of record, the examiner should note the multiple statements and testimony the Veteran submitted on his own behalf, regarding in-service and post-service symptoms and experiences, and the examiner should consider the credibility of those statements in light of confirming or contradicting evidence of record, including objective findings. 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. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. e. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly and specifically so specify in the report, and explain why this is so. 2. After the above development has been accomplished to the extent possible, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and given an appropriate period of time for response. The case should then be returned to the Board, if in order. The purpose of this REMAND is to obtain additional development and to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran 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). ___________________________ 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) (2010).