Citation Nr: 1237726 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 09-09 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1961 and January 1964. These matters come on appeal before the Board of Veterans' Appeals (Board) from rating decisions rendered in July 2006 and January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2011, the Veteran submitted to the Board additional evidence for consideration in connection with the claims on appeal. His representative provided a waiver of RO jurisdiction of such evidence in his October 2012 written presentation. As such, the Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." 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's review of the claims file reveals that further development on the matters of entitlement to service connection for bilateral hearing loss and bilateral tinnitus is warranted. Generally, to award entitlement to service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2012). The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The Veteran originally filed his claims for entitlement to service connection for bilateral hearing loss and tinnitus in December 2005. In written statements of record, he has asserted that he suffered from bilateral hearing loss and tinnitus for at least the last 15 years, that in-service exposure to loud noise during artillery field drills and while firing 150 mm guns had injured his ears, and that his service-issued hearing protection (small earplugs) did not stay in his ears. The Veteran also contended that his hearing gradually became worse in the first few years after leaving service. While service treatment records did not reflect any complaints, findings, or diagnoses of bilateral hearing loss for VA purposes or tinnitus, the Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments, to include the Veteran's military occupational specialty listed as Basic Field Artillery on his DD Form 214. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). In-service incurrence of injury is therefore met as to acoustic trauma. The Board also notes that there is no dispute that the Veteran is competent to report hearing loss and tinnitus symptoms he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Board notes that the post-service May 2006 VA audio examination results did reflect bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. A finding of a nexus between the Veteran's current bilateral hearing loss and tinnitus and in-service noise exposure is still needed. In the May 2006 VA examination report, the Veteran reported no significant recreational or occupational noise exposure during post-service employment as a carpenter with construction for 15 to 20 years. He indicated that his bilateral, constant tinnitus gradually onset approximately 10 to 15 years ago. The examiner, a VA audiologist, noted that the most likely etiology of the tinnitus in view of the Veteran's asymmetrical sensorineural hearing loss (worse in the right ear) may include noise exposure, presbycusis (age-related hearing loss), or potential retrocochlear involvement. She further opined that it was less than likely that the hazardous military noise exposure contributed to the Veteran's current sensorineural hearing loss and complaints of tinnitus, noting that hearing thresholds were within normal limits just prior to service separation. The Board notes that the May 2006 VA examiner did not adequately discuss or consider the Veteran's lay assertions concerning onset or continuity of his claimed disorders. She also seemed to initially identify multiple possible etiologies for the Veteran's claimed bilateral tinnitus. Finally, the examiner appeared to base her opinion that it was less than likely that the hazardous military noise exposure contributed to the Veteran's current sensorineural hearing loss and complaints of tinnitus on the fact that the Veteran's hearing thresholds were within normal limits just before separation from service. The Board again notes the holdings in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), Hensley v. Brown, 5 Vet. App. 155 (1993), and Godfrey v. Derwinski, 2 Vet. App. 352 (1992), which reflected that the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 and for tinnitus, 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 regulation does not necessarily preclude service connection for hearing loss and tinnitus that first met the regulation's requirements after service. The Board therefore finds that the May 2006 VA examiner's opinion is inadequate for adjudication purposes. In light of the cumulative record discussed above, the AMC should arrange for an additional VA medical opinion to clarify the etiology of his claimed bilateral hearing loss and tinnitus on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claims file also reflects that the Veteran has received VA auditory brain stem response testing for evaluation of his claimed bilateral hearing loss and tinnitus disorders in June 2006 at the VA Medical Center (VAMC) in Marion, Illinois. While the test was noted to be scheduled for June 15, 2006, in the May 2006 VA audio examination report and the Veteran also discussed undergoing the testing in later written statements of record, a copy of the June 2006 VA auditory brain stem response testing report has not been associated with the Veteran's claims file or Virtual VA eFolder. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. Obtain a copy of June 2006 VA auditory brain stem response testing report performed at the Marion VAMC and associate it with the record. All reasonable attempts should be made to obtain any identified records. 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 and his representative 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(c)(2),(e). 2. The AMC should obtain a VA medical opinion from an appropriate audiologist to clarify the etiology of the Veteran's claimed bilateral hearing loss and tinnitus. The claims file must be made available to the examiner for review in conjunction with the opinion, and the examiner must indicate in his or her report that the claims folder was so reviewed. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the diagnosed bilateral hearing loss and/or tinnitus is casually related to the Veteran's period of active service, to include conceded in-service noise exposure. In doing so, the examiner should acknowledge and discuss the statements from the Veteran asserting in-service noise exposure, continuity of bilateral hearing loss and tinnitus symptomatology, and a causal connection between his claimed bilateral hearing loss and/or tinnitus and service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Upon completion of the above, readjudicate the issues on appeal, with consideration of all evidence obtained since the issuance of the February 2009 SOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ JONATHAN B. KRAMER 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) (2012).