Citation Nr: 1305237 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-13 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008, April 2009, and April 2011 rating decisions of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2012, the Veteran testified before the undersigned via video conference hearing from the RO. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. At his hearing, the Veteran testified that he is currently receiving medical treatment for his claimed disabilities at both the Grand Rapids VA Medical Center as well as the Battle Creek VA outpatient treatment center. His representative indicated that these records were not contained in the claims file and should be obtained. A review of the record, including VA's Virtual System, shows that only medical records from the Battle Creek VA outpatient treatment center dated from July 1, 2008 to September 1, 2009, have been associated with the record. When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990). Therefore, the complete clinical records of the Veteran from both VA medical facilities should be obtained in compliance with VA's duty to assist and the representative's assertions that they are relevant to the claims on appeal. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. 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, 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. On entrance into service, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 n/a 35 LEFT 15 15 15 n/a 25 At separation, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 15 LEFT 10 10 5 15 20 Hearing loss, as defined by VA, was not shown on either examination, although the Veteran appeared to have better hearing when he separated, other than at 3000 Hertz. The Veteran claims that he suffered acoustic trauma during service due to loud weaponry noise which resulted in his current hearing loss and tinnitus. In support of his claim, he has submitted lay evidence from his wife and daughter who stated that the Veteran had problems with his ears, including hearing loss and tinnitus, from service to the present time. The Veteran and his wife married during his military service. Thus, this evidence suggests the presence of a chronic disability (hearing loss) as well as continuity of symptoms for both disabilities. In July 2008, a VA examination revealed that the Veteran had hearing loss by VA's definition. However, the examiner opined that it was not service-related as there was no significant change in the Veteran's hearing during service and since there is no scientific basis for delayed or late onset noise-induced hearing loss attributable to service noise exposure 20-30 years later. A later August 2010 examination suggested that the Veteran has more of a presbycusis curve and not an acoustic trauma type of hearing loss. In addition, it was noted that tinnitus had only been present in the last three years. This examiner also cited to the absence of any significant hearing loss on separation and stated that it was "interesting" that the Veteran's discharge audiogram threshold was better than the enlistment examination. A private audiologist provided an alternate opinion that the Veteran's hearing loss preexisted service, but was aggravated by acoustic trauma therein. Since this claim is being remanded for missing pertinent medical records, the Board finds that it would be helpful to obtain a clarifying medical addendum from a VA audiologist. In that regard, the lay evidence from the Veteran and his family indicates that his hearing loss and tinnitus were present when he separated from service which contradicts the examiners indications that hearing loss had its onset after service and that tinnitus had been present for three years. Their assertions have not been adequately addressed thus far. In addition, although the VA examiners essentially implied that hearing loss was first present post-service, they did not specifically address or make clear if it was in fact manifest in the initial post-service year. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all clinical records, which are not already in the claims file, of the Veteran's treatment at both the Grand Rapids VA Medical Center as well as the Battle Creek VA outpatient treatment center. 2. Obtain a VA medical addendum from a VA audiologist. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that current hearing loss or tinnitus is related to service or if hearing loss was manifest within one year of service. The examiner should specifically address the statements of the Veteran, his wife, and his daughter, that hearing loss and tinnitus have been present since his separation from service and continuous since that time. A rationale for any opinion expressed should be provided. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).