Citation Nr: 1302669 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 11-12 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to March 1949. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO denied entitlement to service connection for 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 Veteran maintains that his current hearing loss is due to, at least in part, acoustic trauma suffered in service during World War II. The Veteran's service personnel records show that he served primarily as a construction machine operator. According to a Separation Qualification Record, the Veteran's duties as a construction machine operator included, among other things, operating construction machines such as road grader, bulldozer, angel-dozer, carryall, road roller, rooter, scraper, and rock crusher used in construction and maintenance work on roads and airports. At a VA audiology examination in July 2010, the examiner noted that the Veteran had whispered voice testing results of 15/15 on induction and separation examinations. The examiner noted the above in-service noise exposure, and also indicated that the Veteran denied occupational noise exposure. With regard to recreational exposure, the Veteran reported that he hunted without hearing protection, although the history and frequency of the Veteran's hunting was not indicated. The Veteran reported tinnitus. The Veteran had profound hearing loss and he reported that he had a gradual decrease in hearing for many years and his ears constantly ring, but the onset of his hearing loss and/or tinnitus was unknown by him at the time of the examination. The Veteran also reported that at some point (date unknown) he had an accident at home. Something hit behind his ear and caused it to bleed. He has reportedly not heard out of that [right] ear since and that his left ear has recently been quickly getting worse. The results of audiometric testing indicated profound sensorineural hearing loss in the right ear and a severe to profound sensorineural hearing loss in the left ear. Word recognition could not be tested. Tympanograms were consistent with normal middle ear function in both ears. Reflexes were absent in all conditions. The examiner opined that the Veteran's tinnitus was as likely as not a symptom associated with the hearing loss; however, as to whether the Veteran's hearing loss and tinnitus were due to acoustic trauma, the examiner opined that it was less likely than not that the Veteran had this degree of hearing loss due to military acoustic trauma. However, the examiner was unable to state if hearing loss/tinnitus were due to military acoustic trauma without resorting to mere speculation. The examiner noted that whispered voice tests, which were conducted at the Veteran's induction examination and at his discharge examination, are insensitive to high frequency hearing loss, the type of hearing loss most commonly caused by noise exposure, and are not reliable evidence of normal hearing or hearing impairment. In a May 2012 private opinion, the Veteran's private audiologist, R.B., noted that the Veteran had noise exposure during service, and that noise exposure often results in hearing loss. Therefore, R.B. stated that the Veteran's in-service noise exposure could not be ruled out as a possible contributor to the degree of the hearing loss. R.B. concluded that because a hearing evaluation prior to the noise exposure was not available, it could not be concretely stated as to whether the Veteran's hearing loss was a direct result of his in-service noise exposure. In essence, neither the VA examiner nor the private audiologist provided an adequate opinion in this case. Both opinions essentially note the possibility of the Veteran's in-service acoustic trauma as a contributor to his hearing loss, but neither provide an opinion as to whether the Veteran's hearing loss, at least as likely as not (a 50 percent or higher probability) had its onset during service; or, whether his hearing loss is at least as likely as not a result of the acoustic trauma during service. The VA examiner indicated that it was less likely as not that the Veteran's degree of hearing loss is due to military acoustic trauma and that the examiner could not state if hearing loss/tinnitus are due to military acoustic trauma without resorting to speculation. Importantly, even if a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the Veteran has reported that his hearing loss gradually got worse over the years, and given the May 2012 private audiologist's opinion that the Veteran's in-service noise exposure could be a contributing factor to the degree of hearing loss, the Veteran should be afforded another VA examination to obtain a medical opinion as to the likely etiology of the Veteran's hearing loss. 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. Contact the Veteran and request that he identify any and all sources of treatment for his hearing loss since discharge from service, if any, that have not already been associated with the claims file. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After the above development has been completed, schedule the Veteran for a VA Compensation and Pension audiological examination to determine the nature, extent, onset and etiology of the Veteran's hearing loss and tinnitus. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the Veteran's hearing loss and/or tinnitus is related to excessive noise exposure in service and/or had its onset during service. In that regard, the examiner's attention is directed to credible reports of excessive noise exposure in service and a private audiologist's May 2012 opinion regarding the possibility of the in-service noise exposure as a contributor to the current level of hearing loss. The rationale for all opinions expressed should be provided. The examiner must keep in mind that even if a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. 3. Ensure that all development action has been completed in accordance with the above directives. If any examination report is insufficient, it must be returned to the examiner for corrective action. Then readjudicate the issue of the Veteran's claims of entitlement to service connection for hearing loss and tinnitus. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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. 2012). _________________________________________________ S. S. TOTH 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).