Citation Nr: 1300966 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-25 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hearing loss in the right ear. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable initial evaluation for hearing loss in the left ear. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for hearing loss in the right ear and for tinnitus. In addition, the RO granted service connection for hearing loss in the left ear and assigned a noncompensable evaluation for it. The Veteran has disagreed with the denials of service connection and with the rating assigned for his service connection left ear hearing loss. 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 Veteran asserts service connection is warranted for hearing loss in the right ear and for tinnitus. During the hearing before the undersigned, he testified that the ringing in his ears was caused by M16 gunfire he was subjected to in service on a training exercise on the firing range. He also claims he was a meat cutter and was exposed to loud noises from band saws. He also testified he spoke to his family physician following service about his hearing loss and the ringing in his ears and was told that they were due to the loud noise. An audiometric examination on the entrance examination in April 1965 revealed the hearing threshold levels in decibels in the right ear were 15 (30), 15 (25), 15 (25) and 15 (20), at 500, 1,000, 2,000 and 4,000 Hertz, respectively. It appears the Veteran was tested twice, and the findings on the other audiogram show the hearing threshold levels in decibels in the right ear were 10 (25), 5 (15), 10 (20 and 5 (10), at the same frequencies. Prior to November 1967, the service department reported audiometric test results under American Standard Associates (ASA) values. The Department of Defense adopted the International Standards Organization (ISO) values in November 1967. In July 1966, the VA adopted the ISO standard, which is the standard applied in 38 C.F.R. § 3.385. The figures in parentheses represent the conversion from the ASA to the ISO values. A report of medical history on the separation examination in August 1967 shows the Veteran denied hearing loss. An audiometric test on the separation examination shows the hearing threshold levels in decibels in the right ear were 20 (35), 20 (30), 0 (10), 25 (35) and 20 (25), at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. On his application for service connection submitted in June 2008, the Veteran asserted tinnitus began in 1965. VA outpatient treatment records disclose the Veteran was seen in May 2008 and reported tinnitus. He noted it had been present since service, but had started to bother him more recently. The assessment was tinnitus. The examiner indicated possible causes included dysfunction of the cochlea or cochlear nerve or a vascular disorder. He doubted a neurologic etiology due to the lack of associated neurologic signs or symptoms, and referred the Veteran to audiology for further investigation. The Veteran was seen in the audiology clinic in July 2008 and stated his major complaint was tinnitus, but said that he was used to it. On VA audiology examination in July 2008, the examiner noted she reviewed the claims folder, but indicated service treatment records were not present. It was indicated the Veteran used firearms during service. A history of military, occupational and recreational noise exposure was reported. The Veteran related he worked in the printing industry following service. He maintained tinnitus had been present since basic training. The examiner summarized the audiometric test as showing normal hearing through 2,000 Hertz, sloping to a severe sensorineural hearing loss in the right ear. She commented that research studies revealed that hazardous noise exposure has an immediate effect on hearing and is usually temporary at first. It does not have delayed onset and is not progressive or cumulative. While there were no service treatment records for review, given the Veteran's subsequent occupational noise exposure, and with no previous complaints or examinations in the years since service, it was less likely as not that the Veteran's hearing loss was service-connected. She also noted that the Veteran had been treated for external otitis, which was known to cause tinnitus. Thus, she opined it was less likely than not that the Veteran's tinnitus was service-connected. The Veteran's claims folder was reviewed in November 2011 by the examiner who conducted the July 2008 audiology examination. She summarized the audiometric findings in service. She reiterated her conclusion that there is no scientific support for delayed onset noise-induced hearing loss. She also noted tinnitus is a known symptom of hearing loss and, given the Veteran's subsequent occupational noise exposure, it was less likely tinnitus is service-connected. The audiometric test on the entrance examination appears to show hearing loss, but not hearing loss disability under 38 C.F.R. § 3.385 (2012) in the right ear. The separation examination audiometric test shows a slight change, but does show hearing loss disability is present in the right ear. There is no indication in the record that the VA examiner in July 2008 or November 2011 recognized that the audiometric tests in service were not converted from ASA to ISO and, therefore, her opinion was not predicated on the correct findings. Similarly, with respect to her conclusion regarding the etiology of tinnitus, at the time of her November 2011 opinion, the examiner was apparently not aware that service connection was in effect for hearing loss in the left ear. The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the most recent VA audiometric examination 2008, and the Veteran has made evidentiary assertions that his condition was increased in severity since that time. Under 38 C.F.R. § 3.326(a) (2012), a VA examination will be authorized where there is a possibility of a valid claim. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA audiometric examination to determine the etiology of the Veteran's hearing loss in his right ear and of tinnitus, as well as the current severity of his service-connected left ear hearing loss. In light of the fact that the in-service audiometric tests demonstrated hearing loss in the right ear at entrance and hearing loss disability at separation (with the conversion from ASA to ISO), the examiner is requested to provide an opinion concerning whether any hearing loss in the right ear chronically increased in severity during service beyond the natural progression of the disorder. The examiner should also provide an opinion concerning whether it is at least as likely as not that the Veteran's tinnitus is related to service. The rationale for any opinion should be set forth. All appropriate tests should be performed. The claims folder should be made available to the examiner in conjunction with the examination. 2. Following completion of the above, the RO should review the evidence and determine whether the appellant's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant 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. 2011). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs