Citation Nr: 1305016 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 04-31 829A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the benefits sought. In a VA Form 9 submitted in July 2011 the Veteran requested a Board hearing at a local RO, however, in a statement received in August 2011 the Veteran withdrew that request. In October 2011 the Board remanded the claims on appeal and as well as a claim for service connection for posttraumatic stress disorder (PTSD). In an October 2012 rating decision the RO granted service connection for PTSD. 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 claims entitlement to service connection for bilateral hearing loss and for tinnitus. The record is unclear as to whether the Veteran has a present hearing loss disability as defined by VA under 38 C.F.R. § 3.385 (2012). Impaired hearing is 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. 38 C.F.R. § 3.385. Unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. Medical records show that a number of audiology examinations were conducted during the appeal. The reports of VA audiology examinations in August 2004 and February 2012 clearly show that neither the auditory thresholds measured at the indicated frequencies nor the speech recognition scores met the criteria to be considered a disability in either ear. Id. At the most recent VA audiology examination, in February 2012, auditory thresholds in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 0 35 LEFT 10 10 15 25 35 Speech recognition was 94 percent in the right ear and 96 percent in the left ear. These findings do not meet the criteria for a hearing loss disability under VA requirements of 38 C.F.R. § 3.385. Results of private audiology tests in graphic form show a hearing loss disability in the right ear but not the left during testing in May 2004; and show a bilateral hearing disability when tested in March 2005, April 2007, and November 2011. The most recent report, the November 2011 private audiology testing in graphic form, shows that bilaterally the thresholds at 3000 and 4000 Hz were both over 40 decibels. Those findings clearly reflect that the Veteran's hearing loss meets the criteria to be considered a hearing loss disability under VA requirements of 38 C.F.R. § 3.385. A remand is necessary in order for the RO to afford the Veteran an examination to clarify any discrepancy among these findings as to whether the Veteran has a right or left hearing loss disability as defined under VA regulation, and if so, to obtain an opinion as to whether any such hearing loss disability has an etiological nexus with service, to include exposure to acoustic trauma. The record includes an April 2005 private ENT (Ear Nose and Throat) Clinic Report from Presbyterian Medical Group, which contains an opinion that the Veteran's bilateral sensory nerve hearing loss resulted in his associated tinnitus. Given this, findings reflecting a bilateral hearing loss disability that is found to be related to service, will have an impact on the tinnitus claim. The examination must include an opinion as to whether the Veteran's tinnitus is etiologically related to service-independent of the hearing loss condition-or as etiologically related to the Veteran's hearing loss. In sum, an examination is necessary to clarify whether any hearing loss disability-as defined by VA-or tinnitus, is present and, if so, is caused or aggravated by service; or is proximately due to or the result of a service-connected disability; or constitutes aggravation of a nonservice-connected disorder proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran must be given an opportunity to submit statements regarding the onset and continuity of relevant symptoms; and any additional pertinent treatment records not on file must be obtained Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records pertinent to the bilateral hearing loss and tinnitus service connection claims. 2. Notify the Veteran that he may submit statements from himself and others; describing their impressions regarding the onset and chronicity of symptoms of hearing loss and tinnitus since service. Provide the Veteran with an appropriate period of time to obtain such evidence. 3. After completion of the above, schedule the Veteran for a VA audiology examination to determine the nature extent, onset and likely etiology of any hearing loss disability or tinnitus found to be present. The claims file must be made available to and reviewed by the examiner. The examiner is to elicit from the Veteran a history of noise exposure during and since service, and of pertinent auditory symptoms since service. For any tinnitus, or right or left hearing loss disability (defined as 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), the examiner must provide a medical opinion as to whether it is at least as likely as not that such tinnitus or hearing loss diagnosed: (1) is related to or had its onset in service, or was aggravated, to include as due to loud noise exposure experienced therein; or (2) is proximately due to or the result of a service- connected disability; or (3) constitutes aggravation of a disorder proximately due to or the result of a service-connected disability. All opinions must be supported by a thorough rationale. The examiner must comment on the audiology findings contained in the private audiology examination reports dated in May 2004, March 2005, April 2007, and November 2011. 4. Following any additional development deemed appropriate, readjudicate the Veteran's claims. If either of the benefits sought is not granted, an appropriate supplemental statement of the case must be issued. The Veteran and the representative must be afforded an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ RONALD W. SCHOLZ 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).