Citation Nr: 1301019 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-20 613 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri 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 C. L. Wasser, Counsel INTRODUCTION The Veteran had active service from June 1949 to March 1953. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the RO in St. Louis, Missouri that denied service connection for bilateral hearing loss and tinnitus. Please note 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 claims that are currently before the Board require further development before being decided on appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). And although the Board sincerely regrets the additional delay that will result as a consequence of this remand of these claims, the additional development of these claims is necessary to ensure there is a complete record upon which to adjudicate these claims and to afford the Veteran every possible consideration. Although a VA audiological examination was conducted in June 2010, the Board finds that the VA examination report is inadequate, and the claims must be remanded for another VA medical opinion with an adequate rationale. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, or notify the claimant why one will not or cannot be provided); and see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). For purposes of applying the laws administered by VA, impaired hearing will only be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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. That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). The results of the Veteran's June 2010 VA audiological examination confirm he has sufficient hearing loss in each ear to be considered a ratable disability according to the requirements of 38 C.F.R. § 3.385. The Veteran reported that he has current tinnitus at this examination. The question remaining is whether his current bilateral hearing loss disability and/or tinnitus are related to service. The Court has indicated that that it is not mere review of the claims file that is determinative of the probative value of an opinion, rather, more so the discussion of the underlying medical rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). And the VA audiology examiner's June 2010 medical opinion is based on an inadequate rationale as the examiner based his negative medical nexus opinion largely on the fact that the Veteran's hearing was "grossly normal" on whispered voice testing during his separation examination in 1953, which is contrary to the Court's holding in Ledford, supra. Further, although he noted that the Veteran reported that he had noise exposure from aircraft during service, he also found that nothing in the file showed that the Veteran had excessive noise exposure in service. However, in written statements, the Veteran has consistently reported this exposure aboard the USS Rendova, relating that he worked on the flight deck as a communications specialist during flight operations, and that the shop where he worked was under the "CAT" stops. The Veteran is competent to say he had difficulty hearing or ringing in his ears while in service. Moreover, his service treatment records show that he served aboard the USS Rendova, a Navy escort carrier. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (service treatment records, etc.)). At his June 2010 VA examination, the Veteran also reported noise exposure as a hunter. On remand, the VA examiner must consider the Veteran's reports of noise exposure both during and after service, as well as his report of tinnitus since his noise exposure in service. See his February 2010 written statement. The claims file does not contain any information regarding any potential post-service occupational noise exposure, and this information should be obtained from him on remand and provided to the examiner. The Veteran's DD Form 214 reflects that he served in the Navy and his primary military occupational specialty (MOS) was that of a teletype operator. In an effort to confirm the Veteran's reports of in-service noise exposure from aircraft while aboard ship, the AMC/RO should attempt to obtain his service personnel records and associate them with the claims file. Finally, the Board notes that the claims file does not contain any post-service medical records other than the VA examination report. Any additional relevant medical records, not currently on file, should be obtained and considered. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive, if not actual, notice of VA medical records because they are maintained and generated within VA's healthcare system and, therefore, deemed to be in VA's possession, even if not physically in the file). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Write to the Veteran and ask him to list all in-service and post-service noise exposure, either occupational or recreational. Also ask the Veteran to provide the names and addresses of all medical care providers who have treated him for hearing loss and tinnitus. With any necessary authorization, obtain all identified records that are not already in the claims file. 2. Obtain the Veteran's service personnel records from the appropriate records repository. 3. Then, forward the Veteran's claims file to the examiner who provided the June 2010 VA medical opinion, and obtain another medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current bilateral hearing loss and/or tinnitus is related or attributable to his military service - and, in particular, to his reported noise exposure in his military occupational specialty (MOS) as a teletype operator aboard an aircraft carrier, versus his post-service noise exposure. The commenting examiner must review the claims file, including a complete copy of this remand, for the pertinent history, and then indicate in the examination report that the claims file was reviewed. The examination report must include discussion of the rationale for all opinions expressed and conclusions reached, whether favorable or unfavorable to the claims, if necessary citing to specific evidence in the file. The examiner may consider the absence of any objective indication of hearing loss, such as on an audiogram, at any earlier date as one of the reasons for disassociating any current hearing loss from the Veteran's military service, just not as the sole reason for this disassociation. 4. Then readjudicate these claims in light of all additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. 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). 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. 2012). _________________________________________________ KELLI A. KORDICH Acting 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).