Citation Nr: 1307790 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-17 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to January 1972. The Veteran was initially discharged from active service "under conditions other than honorable." In July 1978, the Veteran's discharge was upgraded to "under honorable conditions" by the Army Discharge Review Board. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Pursuant to his request, the Veteran was scheduled for a video hearing at the RO in February 2013; however, he cancelled the hearing. As he has not requested another hearing, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he has bilateral hearing loss and tinnitus due to noise exposure during service. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). Indeed, he has been awarded the Combat Infantryman Badge, which indicates that he engaged in combat with the enemy, and his service personnel records show that he served as a light weapons infantryman. As such, the Board finds that there is satisfactory evidence that the Veteran had noise exposure consistent with the circumstances, conditions, or hardships of his service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389 (1996). However, section 1154(b) serves only to relax the evidentiary burden to establish the incurrence of a disease or injury in service. It does not provide a substitute for medical-nexus evidence. See Clyburn v. West, 12 Vet. App. 296, 303 (1999). During a September 2009 VA examination, the Veteran indicated that he served in combat and reported significant amounts of noise exposure from guns and artillery. Following service, the Veteran stated that he worked in road maintenance without hearing protection for 1 year and in construction for 20 years with hearing protection. The Veteran reported constant tinnitus which had onset 30 years prior. The Board finds the September 2009 VA examination is inadequate. The examiner opined that given the Veteran's normal hearing at entrance and at separation, his hearing loss and tinnitus are not related to his military noise exposure. The examiner then noted the Veteran did not report hearing loss or tinnitus on separation forms. The examiner did not address the Veteran's lay assertions regarding the use of hearing protection post-service or the Veteran's report of a 30 year history of tinnitus. Under the law, the Board must consider whether any current hearing loss is otherwise etiologically related to in-service noise exposure notwithstanding normal hearing at discharge. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (holding that although a hearing loss disability is not established at separation from service it may be established later "by submitting evidence that the current disability is causally related to service"). Moreover, as detailed below, in finding that the service entrance audiometrics were normal, it is not apparent that the September 2009 VA examiner considered the June 1968 audiometric readings were in American Standards Association (ASA) units and must be converted to International Standard Organization (ISO) units to be compared with later results. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (neither a VA examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions; most of the probative value of a medical opinion comes from its reasoning). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). As the VA examiner did not address the Veteran's competent assertions of hearing loss and tinnitus and the opinion is inadequate, the report must be returned to the examiner for a clarification of opinion. See Barr, 21 Vet. App. at 311. In providing the opinion, the VA examiner should note that the audiometric testing at the Veteran's June 1968 service entrance examination was conducted in ASA units and must be converted to ISO units. The Board notes that the separation examination was conducted in December 1971 and is presumed to use the ISO standard. Service department readings prior to October 31, 1967, are presumed to be in American Standards Association (ASA) units. In this case, the June 1968 service entrance examination has a notation that ASA units were used. The June 1968 service entrance examination (converted ISO units in parenthesis): HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 0 (10) 0 (10) 0 (5) LEFT 15 (30) 5 (15) 5 (15) 0 (10) 15 (20) The December 1971 separation examination in ISO units: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 n/a 10 LEFT 5 0 0 n/a 5 In light of the Veteran's combat status, the Veteran's competency and the assertion of continuity, the claims for service connection for bilateral hearing loss and tinnitus must be remanded for additional development of the medical record pursuant to 38 C.F.R. § 3.159(c)(4) to resolve the issue of etiology. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder to the September 2009 VA audiology examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. The examiner should provide another opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's bilateral hearing loss and tinnitus are related to in-service noise exposure. In so doing, the examiner must discuss the likelihood that the Veteran's hearing loss and tinnitus are due to in-service noise exposure on a delayed or latent onset theory of causation. The examiner must provide reasons for each opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so, aside from lack of contemporaneous medical treatment or documentation. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Readjudicate the issues on appeal. If the benefits sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. The Veteran 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). _________________________________________________ CHERYL L. MASON 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).