Citation Nr: 1310094 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-05 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim. In September 2012, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been reviewed and has been associated with the Veteran's physical claims file. 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 seeks service connection for hearing loss and tinnitus that he claims are directly related to excessive noise exposure during military service. His September 2012 hearing testimony indicates that he worked around tanks (13 B-40s and 105 Hausers) and that after he was sent to Vietnam he was exposed to noise from firing 50-75 volleys daily. See September 2012 hearing transcript (Tr.) at pages 2 -3. He also testified that on occasion there would be a short round that would fire prematurely resulting in swelling of his ears, bloodshot eyes, and pounding headaches. He also testified that at service discharge he complained of problems with his hearing and soreness and ringing in his ears, but was told that he would be fine. The Veteran first noticed trouble with his hearing in the mid 1970s and had to withdraw from college because problems with his hearing. He later sought an audiological evaluation in the early 1980s, which revealed 40-45 high frequency hearing loss, which he was told was due to nerve damage from the in-service artillery fire. See Tr. at page 3. The Board finds little controversy in this case as to whether the Veteran was exposed to noise trauma in service. His DD 214 confirms that his military occupational specialty (MOS) was that of a field artillery crewman, a specialty generally associated with noise exposure. See VBA Fast Letter 10-35 (September 2010). Therefore, his account of in-service noise exposure appears credible and consistent with the circumstances of his service. Thus, the Board concedes the Veteran's exposure to noise in service. See 38 U.S.C.A. § 1154(a) (West 2002). However neither hearing loss, according to the threshold standards of 38 C.F.R. § 3.385, or tinnitus were present at any time during service, at the time of discharge, or within a year thereafter. Service treatment records reflect no specific instances of complaints or treatment stemming from noise trauma. However, the Veteran's hearing test at enlistment in October 1966 was shown to be: 0(15), 0(10), 0(10), 25(35), and 25(30) decibels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hertz (Hz) respectively, and for the left ear at the same frequencies were 0(15), 0(10), 0(10), 0(10), and 25(30) decibels, respectively. [The Board notes that, prior to November 1967, in-service audiometric examination findings were generally reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.] The Board acknowledges that the elevated thresholds at 3000 and 4000 Hz in the right ear and 4000 Hz in the left ear were beyond the range of normal hearing. In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the United States Court of Appeals for Veterans Claims (Court) held that hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently. In fact, the laws and regulations do not specifically require complaints of, or treatment for, hearing loss during service in order to establish service connection. Id. See also Hensley v. Brown, 5 Vet. App. 155 (1993) (where the Court held that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service). Of further importance to the Board in this matter is the fact that, despite these somewhat elevated hearing acuity levels shown on enlistment, the Veteran was found to be qualified for service. He is, thus, found to be sound on enlistment. Further, the Veteran's August 1969 separation examination shows normal ears and drums and his denial of any hearing loss or ear, nose, or throat trouble. The results of his audiometric testing shows puretone thresholds in the right ear of 15, 15, 15, and 15 decibels at 500, 1,000, 2,000, and 4,000 Hz respectively, and for the left ear at the same frequencies were also 15, 15, 15, and 15 decibels. According to post-service medical reports, the Veteran was referred for VA examinations for the specific purpose of obtaining an opinion as to whether his current hearing loss could be related to service. At that evaluation, the Veteran reported a history of military noise exposure from small arms fire, heavy artillery, mortars, grenades, and tanks. He denied significant occupational noise exposure, but did have occasional recreational noise exposure from lawnmowers and hunting. He reported that he did not remember a specific instance in which his tinnitus began, but, when asked to give an approximate date of onset, reported about "five years ago." See VA examination report dated April 2007. A nexus opinion was not provided. The examiner noted that the Veteran's claims file had been requested several times but was never made available for review. She explained that an opinion regarding the relationship between the Veteran's military noise exposure and current hearing loss could not be made without such review. During an August 2007 examination, the VA examiner opined that it was less likely as not that hearing loss was due to in-service noise exposure. This opinion was based primarily on review of normal auditory findings at the Veteran's separation physical and the fact that there was no examination present from the year after the Veteran left service reflecting hearing loss manifested to a compensable degree of severity by then. Likewise, the examiner concluded that the Veteran's tinnitus was less likely as not due to noise exposure in the military. The examiner again noted that the claims file had not been made available for review but that pertinent information had been provided in the examination request. The August 2007 medical opinion was rendered without the benefit of a review of the service treatment records. As a result, the VA examiner was not informed of all the relevant facts when he rendered the above opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Also, the VA examiner failed to address specifically the Veteran's contention that he has had hearing loss and tinnitus during, and shortly after, service. Therefore, the Board finds the August 2007 VA examination is inadequate. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008); Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, 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). As such, the Board has no discretion and must remand this matter for another medical opinion. As the Veteran is competent to report the onset of hearing loss and tinnitus in service (as this requires only personal knowledge and not medical expertise and as it comes to him through his senses), when forming an opinion as to the etiology of his current hearing loss, the examiner must discuss the Veteran's enlistment and separation audiograms, his claims of exposure to acoustic trauma during service, and his contention that he developed hearing loss and tinnitus during service and has experienced continued problems since then. Dalton v. Nicholson, 21 Vet. App. 23 (2007). That said, however, the Veteran's contentions as to his symptoms must be considered in light of the medical and other evidence of record to determine whether his lay testimony is credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Also, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms from the Veteran, procure any medical records, not already in the claims file, pertaining to treatment or evaluation of his hearing loss and tinnitus. In particular, request that the Veteran provide more complete identification of private treatment related to his hearing condition in the early 1980s, as indicated during the hearing in September 2012. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available records should be associated with the claims folder. 2. Then, accord the Veteran a VA audiological examination. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies, including audiological testing, should be performed, and the examiner should review the results of any testing prior to completing the report. The examiner should provide numeric interpretation of the audiogram and should set forth numeric values for the pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hz. The reported numeric values and speech recognition scores (Maryland CNC test) must be in conformity with the requirements of 38 C.F.R. § 3.385. The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that any current hearing loss and tinnitus diagnosed on examination is consistent with his active duty service, or whether such a causal relationship is unlikely (i.e., a probability of less than 50 percent). The examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. He/She should take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure, the onset of hearing loss and tinnitus, and continuity of hearing loss since service. [Note: The Veteran's in-service noise exposure has been conceded]. He/She should also convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison and discuss all in-service audiograms when forming their opinion. If it is the opinion of the examiner that the Veteran's current hearing loss and tinnitus are the result of any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the 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 and tinnitus. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the hearing loss and tinnitus claims on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).