Citation Nr: 1305565 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-23 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in May 2009 and a statement of the case was issued in March 2010. An April 2010 submission from the Veteran's representative was accepted as a substantive appeal. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) been raised by the record in an October 2012 submission, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran claims hearing loss and tinnitus due to noise exposure in service. His DD Form 214 reflects that he had 1 year of service in Vietnam and served as an air freight specialist. The Board concedes that the Veteran had noise exposure in service. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). The regulations do not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). If the record shows evidence of in-service acoustic trauma and in-service audiometric results indicate an upward shift in tested thresholds, and if post-service audiometric testing results meet the requirements of 38 C.F.R. § 3.385 (2012), it must be determined whether there is a medically sound basis to attribute the post-service findings to injury in service, or whether they are more properly attributable to intercurrent causes. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds 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. Audiometric testing conducted in November 1965 for entrance into service showed reported puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 0 -5 LEFT 5 15 15 15 5 Audiometric testing conducted in April 1966 for 'Initial Flight' purposes showed reported puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -10 0 0 LEFT -5 -5 -5 -5 5 It was not reported what standards were used in conducting the November 1965 and April 1966 testing. Audiometric testing conducted in February 1969 for separation purposes showed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 5 LEFT 5 5 5 10 0 It was indicated that this testing was conducted using American Standards Association (ASA) 1951 units. In October 2012, the Veteran underwent a VA audiological examination which showed hearing loss per § 3.385. The examination report contains no discussion or notation of the Veteran's in-service noise exposure nor notation of discussion with the Veteran regarding his symptoms and assertions. The examiner opined that his hearing loss and tinnitus were not likely due to service as he had normal hearing bilaterally upon military separation. With regard to tinnitus, the examiner noted that there were no complaints of tinnitus in the Veteran's records and he denied any ear trouble on separation. Such opinion is entitled to limited probative weight as it does not appear to give any consideration to the Veteran's in-service noise exposure and lacks an adequate rationale for the negative etiological opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Veteran should be afforded another VA examination to determine whether his current bilateral hearing loss or tinnitus is etiologically related to service. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a new VA examination to determine whether current bilateral hearing loss or tinnitus a result of in-service noise exposure, or otherwise related to service. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should note the in-service audiology examinations and history, the post-service VA audiology examination, the conceded in-service noise exposure, and the Veteran's statements regarding the onset of hearing loss and tinnitus. The examiner should provide an opinion as to the standards most likely used in reporting the audiology test results in November 1965 and April 1966 as well as how those results and the results on the February 1969 examination would convert to contemporary standards. The examiner should opine as to whether the hearing tests indicate a threshold shift. The examiner should presume that the Veteran had in-service noise exposure from his in-service duties as an air freight specialist. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss is the result of in-service noise exposure. In rendering this opinion the examiner should discuss whether hearing loss could be of delayed onset following noise exposure. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that his tinnitus is the result of in-service noise exposure. The examiner must address any pure tone threshold shifts during service, and determine whether they support a relationship between the Veteran's current bilateral hearing loss and tinnitus, and his period of service. All opinions and conclusions expressed must be supported by reasons. The reasons should include consideration of the Veteran's reports of the onset and continuity of his hearing loss and tinnitus. The examiner should reconcile any opinions with the service records, post-service medical evidence, and lay statements of the Veteran. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. The RO/AMC should review the examination report to ensure that it contains the information, opinions, and rationales sought in this remand. 3. If either of the benefits sought are not granted, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, he is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).