Citation Nr: 1300985 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 12-22 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral 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 W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to January 1959, and from January 1959 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. He contends that he was exposed to loud noise from mortars and artillery fire during his military service. Historically, the Veteran served on active duty in the Army from May 1954 to January 1959, and from January 1959 to April 1961. His report of separation, Form DD 214, noted that he served as a flash ranging crewman assigned to Battery C, 1st Observation Battalion, 26th Field Artillery. Thus, the record clearly establishes that the Veteran was exposed to noise during service. His July 1953 pre-induction examination noted hearing acuity of 15/15, bilaterally, on whispered voice testing. His service treatment records are silent as to any complaints or diagnoses of hearing loss or tinnitus. His March 1961 separation examination noted hearing acuity of 15/15, bilaterally, on whispered voice testing. After his discharge from the service, the first evidence noting diagnoses of hearing loss and tinnitus is a March 2004 VA audiological report. In June 2008, a VA audiological examination was conducted. The VA examiner noted the Veteran's long standing history of tinnitus and bilateral hearing loss. The examiner also noted the Veteran's inservice history of exposure to mortar and artillery fire without hearing protection devices; and post service exposure to noise while working as a carpenter, with hearing protection. The VA examiner stated that an opinion concerning the issue of whether the Veteran's current hearing loss and tinnitus were related to his military service could not be expressed without resorting to speculation. In support of this conclusion, the VA examiner cited the shortcomings of the whispered voice testing performed in service; and the lack of any inservice complaints, treatment, or diagnoses of tinnitus or hearing loss shown in the Veteran's service treatment records. As persuasively argued by the Veteran's representative, the law does not require evidence of a "significant" upward shift in tested hearing thresholds during service, or evidence of an inservice hearing disability that meets the standard outlined for a hearing impairment disability for VA purposes. 38 C.F.R. § 3.385 (2012). There need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, a new VA audiological examination must be conducted, and the VA examiner must address the issue of whether any degree of the Veteran's current hearing loss is related to his documented inservice noise exposure. In doing so, the examiner should note and consider the Veteran's specific contentions concerning the onset of his hearing loss and tinnitus; and whether the current audiological findings suggest any relationship to acoustical trauma. Accordingly, the case is remanded for the following actions: 1. The Veteran must be afforded the appropriate VA examinations to determine whether any bilateral hearing loss and tinnitus found is related to his military service. The claims folder and any pertinent records on Virtual VA must be made available to the examiner. After a review of the entire evidence of record, the examiner must render an opinion, in light of the service and post service evidence of record, as to: (a) Whether any degree of current hearing loss is related to the Veteran's period of military service (May 1954 to April 1961), or to any incident therein, to include as due to noise exposure; and (b) Whether the Veteran's current tinnitus began as a result of inservice noise exposure. The Veteran's military occupational specialty, the Veteran's lay statements regarding the history of inservice and post service noise exposure, the objective medical findings in the service medical records, the previous audiological evaluations currently of record, and any other pertinent clinical findings of record, must be taken into account. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims remaining on appeal must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 4. This appeal has been advanced on the Board's docket. Expedited handling is required. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).