Citation Nr: 1114119 Decision Date: 04/11/11 Archive Date: 04/21/11 DOCKET NO. 09-32 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from March 1955 to January 1958. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2008 determination of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA) that found that new and material evidence had not been received to reopen the Veteran's claims for entitlement to service connection for hearing loss and tinnitus. The Veteran's March 2009 statement of the case shows that the RO ultimately reopened the claims. However, the United States Court of Appeals for Veterans Claims (Court) has made it clear that even if an RO makes an initial determination to reopen a claim, the Board must still review the RO's preliminary decision in that regard. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). As such, the issues on appeal have been recharacterized as those which are found on the coversheet of the decision. The issues of entitlement to service connection for left ear hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed April 2007 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for hearing loss on the basis that it neither occurred in nor was caused by service. 2. Evidence added to the record since the April 2007 decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's claim for hearing loss and raises a reasonable possibility of substantiating the Veteran's claim. 3. In an unappealed April 2007 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for tinnitus on the basis that it neither occurred in nor was caused by service. 4. Evidence added to the record since the April 2007 decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's claim for tinnitus, and raises a reasonable possibility of substantiating the Veteran's claim. 5. Left ear hearing loss was initially demonstrated years after service, and has not been shown by competent evidence, or competent lay evidence to be causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. The April 2007 RO decision, which denied the Veteran's claims of service connection for hearing loss and tinnitus, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. New and material evidence has been received and the claim for entitlement to service connection for hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. New and material evidence has been received and the claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). 4. Left ear hearing loss was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1131, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the event award of the benefit sought. In Kent v. Nicholson, 20 Vet. App 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Further, in providing instruction as to what information would be considered "new and material", the Court indicated that "material" evidence would include (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. "New" evidence would be considered new only if it had not been submitted previously to VA and was neither "cumulative nor redundant" of evidence already in the record. With respect to the issues on appeal, the agency of original jurisdiction (AOJ), prior to the initial adjudication of the claims, issued a VCAA notice letter to the appellant in August 2008 that informed him of what evidence was required to substantiate the underlying service connection claims and of his and VA's respective duties for obtaining evidence and notified that a disability rating and effective date will be assigned in event of award of any benefit sought per Dingess/Hartman. The Veteran was also informed of what new and material evidence could be submitted to reopen his claim for service connection for hearing loss and tinnitus, what type of evidence would qualify as "new" evidence, and per the requirements set forth in Kent, specifically informed him of what evidence would be necessary to substantiate the element or elements required to establish the claims that were found insufficient in the previous denials. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, a private medical opinion, and a VA examination report. Additionally, the claims file contains the Veteran's statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The record reflects that the Veteran was afforded a VA examination and opinion in March 2007. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and opinion obtained in this case are more than adequate for the left hearing loss issue decided on the merits herein, as it was based on a review of the Veteran's claims file, treatment records, and a physical examination. Supporting rationale was provided for the opinion offered. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to this issue decided on the merits herein has been met. 38 C.F.R. § 3.159(c)(4). (The Board further discusses the duty to assist with respect to the right ear hearing loss and tinnitus claims in the remand following the decision.) Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed for the left ear hearing loss claim and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to this claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Pursuant to 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 3.105 (2010), a final decision by the RO may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105. Under applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). The Veteran filed his claim to reopen in July 2008. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946 and sensorineural hearing loss, as an organic disease of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in, or aggravated by, such service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2010)); 38 C.F.R. §§ 3.307, 3.309 (2010). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2010). The Court, referring to its holding in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet. App. 155 (1993), that ". . . the regulation, although prohibiting an award of service connection where audiometric test scores are within established limits, does not prevent a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service." Id. at 158. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Legal Analysis 1. New and Material Evidence to Reopen-Hearing Loss and Tinnitus The Veteran asserts that new and material evidence has been submitted to reopen his claims for entitlement to service connection for hearing loss and tinnitus. The record reflects that in an April 2007 decision, the RO initially denied the Veteran's claims on the basis that the conditions neither occurred in nor were caused by service. No appeals were taken from those determinations. As such, the decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). The evidence of record at the time of the April 2007 RO denial included the Veteran's service treatment records which were negative for complaints of, or treatment for tinnitus or left ear hearing loss, but which showed right ear impaired hearing at 500 Hertz on the Veteran's January 1958 discharge examination. It also included a March 2007 VA examination report in which the examiner opined that it was not at least as likely as not that the Veteran's hearing loss or tinnitus was related to his military service. The record also contains the Veteran's DD Form 214 which shows that the Veteran's military occupational specialty in the Air Force was that of a weapons system mechanic and that he served on several Air Force bases. The evidence received since the final April 2007 RO decision includes a July 2008 private opinion in which the audiologist opined that the Veteran's current hearing loss and tinnitus were more likely than not related to his military noise exposure. The Board finds this additional evidence is new, in that it was not of record at the time of the April 2007 RO decision. Additionally, the evidence is also material as it relates to prior bases for denial of the claims, including whether the Veteran's current hearing loss and tinnitus are etiologically related to service. Thus, as new and material evidence has been received, the claims for entitlement to service connection for hearing loss and tinnitus are reopened. To this extent only, the appeals are allowed. 2. Service Connection-Left Ear Hearing Loss The Veteran asserts that service connection is warranted for left ear hearing loss. In order to establish service connection on a nonpresumptive direct incurrence basis, the Veteran must provide evidence of a current disability, an in-service injury or disease, and a nexus between the current disability and an in-service injury or disease. With respect to a current disability, the record establishes that current left ear hearing loss "disability" for VA purposes has been demonstrated subsequent to service in a March 2007 VA examination report. Such audiometric examinations reflect pure tone thresholds that range from 25 decibels to 50 decibels and there was a diagnosis of sensorineural hearing loss. See 38 C.F.R. § 3.385. In terms of an in-service injury or disease, the Veteran's service treatment records do not refer to a complaint or finding of left ear hearing loss while in service. Further, the Veteran's November January 1958 separation examination report shows that the Veteran denied a history of ear trouble. Additionally such separation examination report reflects the following pure tone thresholds, in decibels, for the Veteran's left ear (as converted from American Standards Associates (ASA) units to International Standards Organization (ISO) units: HERTZ 500 1000 2000 3000 4000 15 10 10 10 5 Such auditory thresholds reflect normal hearing. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. Nevertheless, the Board notes that, although left ear hearing loss was not demonstrated in service, and was initially clinically demonstrated by the record many years after the Veteran's separation from service, pursuant to 38 C.F.R. § 3.303(d), and the Court's holding in Hensley, service connection may still be established if it is shown that current hearing loss is related to service. Also, under 38 U.S.C.A. § 1154 (a) (West 2002), the VA is required to consider the Veteran's contentions in conjunction with the circumstances of his service. In this case, the Veteran stated that his hearing loss is due to the noise that he was exposed to while fulfilling his duties as a radar technician, including on the flight line. According to the Veteran in several statements of record, he was not given proper ear protection to wear while performing his duties. The Veteran's DD Form 214 reveals that his military occupational specialty was that of a weapons system mechanic and that he served on Moody Air Force Base, Lackland Air Force Base, and Lowry Air Force Base. The Board finds the Veteran is competent to report exposure to loud noise in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing loud noises in service and witnessing events). Thus, in light of all the evidence of record and the Veteran's competent and credible statements regarding exposure to loud noises in service, acoustic trauma due to loud noise exposure in service is conceded as such is consistent with the circumstances of the Veteran's service. 38 U.S.C.A. § 1154(a). However, the Board observes that the record does not establish that the Veteran's current left ear hearing loss is etiologically related to his acoustic trauma in service. As noted above, left ear hearing loss for VA purposes was initially demonstrated years after service (nearly 50 years later). In the absence of demonstration of continuity of symptomatology, this length of time reasonably weighs against a relationship to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Although the Veteran has asserted continuity of symptomatology as to such disability since his discharge from service such assertions are not consistent with the objective evidence of record, and are not deemed credible for the purposes of establishing continuity of symptomatology. In this regard, while such lack of objective evidence does not render his statements incredible, such lack of objective evidence is for consideration. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, it is significant to point out that no competent clinical opinion of record etiologically relates the Veteran's left ear hearing loss to service. In this regard, in March 2007, a VA examiner, after a review of the Veteran's claims file (including referencing the Veteran's history of in-service noise exposure and his January 1958 audiological evaluation) and a current audiological evaluation, opined that it was not as least as likely as not that the Veteran's left ear hearing loss was related to his military service. In reaching this determination, the examiner noted that there were no complaints of left ear hearing loss in the Veteran's file, the Veteran had normal left ear hearing at separation, and there was no evidence of any damage. However, contrary to such opinion is that of Dr. S., a private examiner who, in July 2008, opined that the Veteran's left ear hearing loss was more likely than not related to his military noise exposure. In reaching this determination, Dr. S. noted that although the Veteran was given whisper voice tests at the time of his enlistment and separation examinations, such tests: Are not capable of confirming or denying the presence of hearing loss. Although the tests suggest normal hearing, it should be noted that histopathology literature states that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram. According to the American College of Occupation and Environmental Medicine, noise exposure without the use of hearing protection can cause/or contribute to noise-induced hearing loss, acoustic trauma...in individuals. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board finds that the March 2007 VA examination report is more probative than the private, July 2008 medical opinion. In this regard, the Board observes Dr. S.'s July 2008 opinion was based solely on findings from the subjective whispered voice evaluation found on the Veteran's January 1958 discharge examination report. At no point did he discuss or take into consideration the objective findings from the Veteran's audiological evaluation, which was also documented on the January 1958 discharge examination report. Additionally, to the extent that Dr. S. indicated that "histopathology literature states that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram," the Board finds that such generic information, which does not specifically address the facts in this particular Veteran's own case, and with a sufficient degree of medical certainty, does not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Therefore, the Board finds that Dr. S.'s July 2008 opinion is less than adequate and thus has diminished probative value. However, the cited rationale for the VA examiner's March 2007 opinion, unlike Dr. S.'s opinion, was not solely based o whispered voice findings, but was also based on the specific results from the Veteran's January 1958 objective audiological evaluation, which found that the Veteran had clinically normal hearing. The Board notes that the March 2007 VA examiner did not convert the Veteran's January 1958 audiological findings from American Standards Associates (ASA) units to International Standards Organization (ISO) units. However, even upon conversion, such audiological findings still show that the Veteran did not have impaired hearing. The Board finds this opinion to be highly probative in determining whether there is an etiological relationship between the Veterans's left ear hearing loss and service. Therefore, based on the aforementioned reasons, the Board concludes that the preponderance of the evidence does not establish that there is an etiological relationship between the Veteran's current left ear hearing loss and his military service. Accordingly, the Board finds that the preponderance of the evidence is against a grant of service connection on a direct incurrence basis for left ear hearing loss. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection on a presumptive basis for chronic diseases, the Veteran's left ear sensorineural hearing loss must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of service. In this case, no objective evidence of record demonstrates that the Veteran's left ear sensorineural hearing loss manifested itself to a compensable degree within one year of his 1958 separation from service. Although the Veteran reported on VA examination in March 2007, that the onset of his bilateral hearing loss was in 1959, he is not competent to evaluate the severity of any such hearing loss as meeting the criteria for a hearing loss "disability" consistent with 38 C.F.R. § 3.385, or to evaluate the severity of any such hearing loss as having been to a compensable degree pursuant to 38 C.F.R. Part 4. The record reflects that the first documentation of left ear hearing loss "disability" for VA purposes was in 2007, nearly 50 years after the Veteran's separation from service. Hence, the Board finds that evidence of record does not establish that the Veteran is entitled to service connection on a presumptive basis for his current left ear sensorineural hearing loss. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In conclusion, although the Veteran asserts that his current left ear hearing loss disability is related to service, he is not competent to provide an opinion requiring medical knowledge, such as the complex question of medical causation in this case. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Here, the competent medical evidence weighs against such causation. For the foregoing reasons, the Board finds that the claim of service connection for left ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER As new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, the appeal, to this extent, is granted. As new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, the appeal, to this extent, is granted. Entitlement to service connection for left ear hearing loss is denied. REMAND As adjudicated above, the claims for service connection for tinnitus and right ear hearing loss are reopened. However, the Board finds that additional development of these claims is indicated prior to de novo consideration. VA must make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c)(d). Such assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran asserts that service connection is warranted for tinnitus and right ear hearing loss. He was afforded a VA examination in March 2007 to determine if there was an etiological relationship between the Veteran's current tinnitus and right ear hearing loss disability and his service. The VA examiner noted that January 1958 audiometric data indicated normal right ear hearing and that there were no complaints of hearing loss or tinnitus in the file. The VA examiner opined that because the Veteran's right ear hearing was normal at separation and there was no evidence of any damage, that it was not at least as likely as not that the Veteran's hearing loss and tinnitus were related to military service. As the January 1958 audiological tests were conducted prior to October 31, 1967, the tests are assumed to be in American Standards Associates (ASA) units and must be converted to International Standards Organization (ISO) units. However, there is no indication that the VA examiner converted the Veteran's audiological tests. The Veteran's January 1958 discharge examination shows that he had the following right ear pure tone thresholds, in decibels (as converted from American Standards Associates (ASA) units to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 25 15 15 10 5 The Board notes that the 25 decibel auditory threshold on the right at the 500 Hz levels constitutes impaired hearing, at least at that level. Normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157.Thus, the Veteran's January 1958 discharge examination report reflects that he had some degree of hearing loss in his right ear upon separation from service, at least at 500 Hertz. Consequently, the March 2007 VA examiner's statement that the Veteran's January 1958 discharge examination showed that his hearing was within normal limits in the right ear was incorrect (as opposed to the correct statement regarding the left ear) and his opinion as to the etiology of the Veteran's right ear hearing loss disability and tinnitus was, in part, based on an inaccurate factual premise (i.e. that the Veteran had normal hearing on separation). Therefore, for the foregoing reasons, the Board finds that a new examination and clinical opinion is necessary to ascertain the etiology of the Veteran's tinnitus and right ear hearing loss. See Barr, 21 Vet. App. at 311. Accordingly, these issues are REMANDED for the following actions: 1. Contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for right ear hearing loss and tinnitus since his discharge from service. After securing the necessary authorizations for release of this information, seek to obtain copies of all treatment records referred to by the Veteran, not already of record. 2. Following completion of the above, the Veteran should be afforded a VA examination by a specialist in audiology. The examiner is requested to furnish an opinion concerning: a) Whether it is at least as likely as not that the Veteran's current tinnitus or right ear hearing loss is etiologically related to military service, to include the impaired hearing (at 500 Hertz) noted on his January 1958 discharge examination as well as his exposure to noise while on the flight line. The examiner must consider the Court's holding in Hensley that normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. The examiner must also specifically take into account the conversion of audiometric findings, produced in service prior to October 1967, from ASA to ISO standards. b) Whether there is evidence of a clinically significant shift in hearing thresholds from induction to discharge or during any other qualifying period of military service, and if so, an interpretation of the clinical significance of such shift. The rationale for all opinions expressed should be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 3. Following completion of the above, readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted, furnish the Veteran and his representative an appropriate supplemental statement of the case and provide them with an opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs