Citation Nr: 1237806 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 12-19 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from June 1955 to June 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 appellant if further action is required. REMAND The Board finds it necessary to remand the claims on appeal to the agency of original jurisdiction (AOJ) for additional development. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For 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 Veteran asserts that he has hearing loss and tinnitus as a result of his active military service. Specifically, he states that he was exposed to loud noise during service without ear protection as a mechanic and boatswain's mate. The Veteran maintains that any current hearing loss and tinnitus is related to the in-service noise exposure. Thus, he contends that service connection is warranted for the two disabilities. In September 2010, the Veteran underwent VA audiological examination. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Audiometric testing revealed puretone thresholds that were not reflective of hearing impairment for VA purposes, but speech recognition thresholds met the requirements of 38 C.F.R. § 3.385. After recording the Veteran's history, the examiner provided an opinion that it is not at least as likely as not that hearing loss is related to military service. The examiner noted that the Veteran had normal whisper tests at entrance and at separation from service, and that there were no complaints of hearing loss in the service treatment records. The examiner stated that it is unlikely that any hearing loss was present in 1959 since hearing loss barely exists today. In view of this opinion, the Board finds that the hearing loss claim should be remanded to the AOJ to schedule another VA audiological examination and request another medical opinion. The VA examiner appeared to rely on the absence of hearing loss during service as the primary rationale for the opinion. However, the United States Court of Appeals for Veterans Claims (Court) has held 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 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). Additionally, the examiner did not attribute the hearing loss to any other cause. Thus, on remand, an opinion should be provided as to whether the Veteran has hearing loss for VA purposes that had its clinical onset during, or is otherwise related to, his active military service. As to the tinnitus claim, the evidence is equivocal as to whether the Veteran actually has tinnitus. He is competent to provide statements regarding symptoms that are capable of lay observation and not of a complex medical matter. This would include experiencing ringing in the ears. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, in describing his tinnitus during the VA examination, the examiner noted that the Veteran has tinnitus one or two times per year for 15 minutes. The examiner stated that this is not even a description of normally occurring tinnitus, but likely unrelated to anything, and that it is not at least as likely as not that tinnitus is related to military service. Given this evidence, the Board finds that this claim should also be remanded for an examination and opinion as to whether the Veteran in fact has tinnitus based on his description of symptoms and, if so, whether it is related to his active military service. It appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in St. Louis, Missouri. Updated treatment records should be obtained in light of the remand. Accordingly, this case is REMANDED for the following actions: 1. Obtain the Veteran's more recent treatment records (since May 2011) from the St. Louis VAMC and associate the records with the claims folder. 2. Thereafter, schedule the Veteran for a VA audiological examination to determine the nature and etiology of the claimed hearing loss and tinnitus. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. All necessary tests and studies should be conducted. It should be specifically indicated whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes; i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent. See 38 C.F.R. § 3.385. The examiner should also indicate whether the Veteran in fact has tinnitus based on his description of symptoms of the claimed disability. With respect to any diagnosed hearing loss and tinnitus, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss and tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, to include exposure to loud noise. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).