Citation Nr: 1237471 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 12-08 076A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1956. This matter comes to the Board of Veterans' Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in October 2010, a statement of the case was issued in March 2012, and a substantive appeal was received in April 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 On a Report of Medical Examination conducted in January 1956 for discharge purposes and enlistment in the reserve and extended active duty (RFAD), whispered voice testing was 15/15 in both ears . Unfortunately, audiometric testing was not conducted at that time. While the whispered voice test is not a valid assessment of hearing at the time of entrance or discharge, this was the customary test used during that period. A November 1992 private treatment record references an audio in 1987 and noted that the Veteran had tried amplification but quit a couple of years ago because it did not help him enough. The impression was bilateral neurosensory hearing loss. Thereafter, he sought treatment for bilateral hearing loss. An attempt should be made to obtain the Veteran's treatment records from William B. Mangum, M.D., dated in 1987 and for periods prior to and thereafter. 38 C.F.R. § 3.159(c)(1) (2012). In August 2010, the Veteran underwent a VA examination. Upon audiometric testing and examination, the examiner diagnosed sensorineural hearing loss in both ears. The examiner opined that hearing loss is less likely as not caused by or a result of acoustic trauma. The examiner explained that the Veteran's current audiological profile reveals a low to high frequency sloping impairment not consistent with noise exposure being a major factor. The loss of hearing in the low and mid frequency range is indicative of an undiagnosed medical condition or potential hereditary hearing loss. The examiner then stated that "[w]ith the absence of supporting hearing evidence at discharge an opinion of did not cause hearing loss was not offered in the chance the very early signs of a noise related impairment were present." This statement is unclear and confusing as it is not clear what the examiner was attempting to suggest or explain. Thus, an addendum opinion should be obtained from the VA examiner to provide clarification as to this statement and the rationale for the negative etiological opinion. In offering an addendum opinion, the examiner should be made aware that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Also, in offering an addendum opinion, consideration should be given to the July 2012 positive etiological opinion proffered by Jennifer Dann, M.S., CCC-A. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Upon obtaining an appropriate release from the Veteran, his treatment records should be requested from Dr. Magnum from 1987 and for periods prior to and through November 15, 1992. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completion of the above, request that the August 2010 VA examiner (if available, otherwise another qualified examiner) conduct another review of the claims folder, to include the service treatment records, post-service private evaluations, VA examination report, and July 2012 private opinion, and provide an opinion as to the following: a) whether it is at least as likely as not (a 50% or higher degree of probability) that bilateral hearing loss had its clinical onset during active service or is otherwise related to the Veteran's period of service; b) whether it is at least as likely as not (a 50% or higher degree of probability) that tinnitus had its clinical onset during active service or is otherwise related to the Veteran's period of service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The August 2010 VA examiner should provide clarification of the last sentence contained in the August 2010 report which reads that "[w]ith the absence of supporting hearing evidence at discharge an opinion of did not cause hearing loss was not offered in the chance the very early signs of a noise related impairment were present." 3. After completion of the above, readjudicate entitlement to service connection for bilateral hearing loss and tinnitus. If either of the benefits sought are not granted in full, the Veteran and his representative should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The Veteran and his representative have the right to submit additional evidence and argument on the 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. 2011). _________________________________________________ C. TRUEBA 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) (2011).