Citation Nr: 1304865 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-32 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). On his VA Form 9, Substantive Appeal, the Veteran requested a hearing at the RO before a Veterans Law Judge. A hearing was scheduled in November 2012 and notice of such was sent to the Veteran's address of record. However, he failed to report as scheduled and has not presented good cause for his failure to appear. 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 on his part. REMAND The Board finds that additional development is warranted prior to issuing a decision in these matters. The Veteran contends that current hearing loss and tinnitus disabilities are the result of exposure to weapons fire when serving in the Army. He states that he served in the artillery and was responsible for taking troops to the firing range and was exposed to 90 millimeter, 105 Howitzers, and aircraft engine noise. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the 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. See 38 C.F.R. § 3.385 (2012). Here, the Veteran has submitted results of a VA audiologic consultation dated in February 2008. In addition, he underwent a VA examination in October 2008. Both examinations yielded inconsistent results. During the February 2008 consultation, for instance, while results revealed elevated pure tone thresholds, the puretone averages were not consistent with the speech recognition thresholds. Specifically, even though the puretone thresholds revealed profound hearing loss, the Veteran did not demonstrate communication difficulty that would be expected. Nevertheless, the treatment provider concluded that it was likely that he had some degree of sensorineural hearing loss. Similarly, during the October 2008 VA examination, pure tone results were also deemed unreliable due to exaggeration. The examiner reported poor inter-test consistency and reliability. The report notes that the Veteran was re-instructed on numerous occasions on how to respond to pure tone testing. In addition, he was able to communicate without difficulty. While the examiner was unable to provide an opinion addressing the etiology of hearing loss, she reported that his speech recognition scores of 88 percent in the right ear and 86 percent in the left ear were reliable. As such, while the testing results were tainted by the Veteran's performance, there appears to be evidence of a hearing loss disability for VA purposes. Because the Veteran had a military occupational specialty that presumably included exposure to acoustic trauma, the Board finds that a medical opinion addressing the most likely etiology of hearing loss is required. The claim for tinnitus, being inextricably intertwined with the underlying claim for service connection for hearing loss, must also be remanded. In this respect, while the Board has concerns regarding the Veteran's credibility, in general, veterans are competent to state that they were exposed to loud noises during periods of active duty. 38 C.F.R. § 3.303(a), 3.159(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, veterans are competent to a report a history of hearing and ringing in-the-ear problems, which are capable of lay observation. Charles v. Principi, 16 Vet. App 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). They are not competent, however, to diagnose hearing loss for VA purposes. The Veteran is strongly urged to cooperate with the VA examiner in order to obtain accurate test results. He is reminded that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). 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. Schedule the Veteran for a VA audiological examination to obtain the nature and etiology of any hearing loss and tinnitus disabilities. The Veteran's claims folder, to include a copy of this remand, must be made available to the examiner for review in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All appropriate studies, including audiological testing, deemed necessary should be completed. If the Veteran fails to cooperate with any testing, such fact should be noted in the examination report. The examiner should opine as to whether it is at least as likely as not (i.e., a 50% probability or greater) that any (1) hearing loss disability and (2) tinnitus shown on examination had its(their) onset in service or is(are) otherwise causally related to the Veteran's active duty. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If it is the opinion of the examiner that the Veteran's current hearing and tinnitus disorders are the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss or tinnitus. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner must provide a rationale as to why this is so, and must indicate what if any additional evidence would permit an opinion to be made. 2. Review the examination report to ensure that it contains all information and opinions requested in this remand. Also, ensure that any recommended additional examination and testing has been conducted. 3. Then, readjudicate the issues of entitlement to service connection for bilateral hearing loss and tinnitus. If any claim on appeal remains unfavorable to the Veteran, issue to the Veteran and his representative a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. 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). These claims 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). _________________________________________________ BARBARA B. COPELAND 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).