Citation Nr: 1311022 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-47 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss and for tinnitus. 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 contends that he has bilateral hearing loss and tinnitus that are related to service. He specifically maintains that he served as an electronics communications and cryptographics equipment systems repairman during service and that he was exposed to loud and frequent noises from crypto machines and teletypes, as well as Servo motors. He states his hearing loss and tinnitus both began during service. The Veteran essentially reports that his bilateral hearing loss and tinnitus were first experienced during service and have continued since service. The Veteran is competent to report that he had hearing problems and ringing in the ears in service and hearing loss and ringing in the ears since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385, and do not show complaints, findings, or diagnoses of tinnitus. Post-service private treatment records, and a VA examination report, show that the Veteran has bilateral hearing loss under the provisions of 38 C.F.R. § 3.385, as well as current tinnitus. An August 2010 VA audiological examination report indicated that the Veteran's claims file was reviewed. The Veteran complained of hearing loss and tinnitus, and reported that he served in the Air Force from 1958 to 1962. He stated that he was a crypto operator and repairmen during his period of service and that he was exposed to crypto machines and teletypes that had loud motors, etc. The Veteran indicated that he had worked in sales as a civilian. He reported recreational noise exposure from going to the Indianapolis 500 a number of times, but stated that he used hearing protection. The Veteran denied that he had any ear pathology or treatment. He also denied that he had any associated medical conditions or true vertigo, as well as any family history of hearing loss. The Veteran reported that that he had suffered from tinnitus since his period of service. He stated that his tinnitus was constant. The examiner reported results indicative of a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. The examiner stated that pure tone audiometry results for the Veteran's right ear revealed normal hearing sensitivity from 500 to 1000 Hertz, sloping to mild sensorineural hearing loss from 2000 to 4000 Hertz. In his left ear, the Veteran had normal hearing sensitivity at 500 Hertz, sloping to mild to moderately severe sensorineural hearing loss from 1000 to 4000 Hertz. The examiner indicated that the Veteran had excellent hearing sensitivity at his separation from service. The examiner commented that, therefore, it was not at least as likely as not that the Veteran's current hearing loss and tinnitus were a result of noise exposure during his period of service. The examiner reported exposure to either impulse sounds or continuous exposure could cause a temporary threshold shift that would disappear in sixteen to forty-eight hours after exposure to loud noise. The examiner stated that impulse sounds might also damage the structure of the inner ear resulting in an immediate loss. It was noted that continuous exposure to loud noise could also damage the structure of the hair cells resulting in hearing loss. The examiner reported that if hearing did not completely recover from a temporary threshold shift, a permanent hearing loss would exist. The examiner indicated that since the damage occurred when exposed to noise, a normal audiogram subsequent to noise exposure would verify that the hearing had recovered without permanent loss. The examiner reported that there was a high correlation between hearing loss, tinnitus, and noise exposure. The examiner stated that the presence of a ratable hearing loss from the service, or an audiometric configuration consistent with noise exposure, were strong indicators that any reported tinnitus was also from noise exposure. The examiner indicated that, conversely, normal hearing from the service strongly suggested that the reported tinnitus was less likely to be from noise exposure in service. The examiner maintained that since the Veteran's hearing was normal at the time of his separation from service, it was less likely as not that the reported tinnitus was from military noise exposure. The examiner remarked that the Veteran's reported tinnitus was more likely than not due to the existing hearing loss and/or noise exposure subsequent to service. The VA examiner did not specifically acknowledge and discuss the Veteran's reports that he suffered from bilateral hearing loss and tinnitus during service and since his period of service. The examiner essentially indicated that the Veteran's bilateral hearing loss and tinnitus were not related to his period of service because his hearing was normal at the time of his (May 1962) separation examination. However, in regard to a claim of entitlement to service connection for hearing loss, the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Further, the examiner reported that the Veteran's tinnitus was more likely than not due to his existing hearing loss and/or noise exposure subsequent to service. The only noise exposure the Veteran reported subsequent to service was from going to the Indianapolis 500 a number of times during which he wore hearing protection. In a subsequent May 2011 statement, C. Barton, M.D., indicated that the Veteran was seen in his office for an audiological evaluation. Dr. Barton stated that he had no previous service treatment records to review and that, therefore, his opinion was based on the current verbal history gleaned from the Veteran, as well as from the audiometric information. Dr. Barton commented that the Veteran's hearing loss was at least as likely as not due to prolonged exposure to loud noises. Dr. Barton stated that he did not have information regarding post-military occupational and recreational noise exposure and that it seemed unlikely that noise induced hearing loss would develop from cryptography or air conditioning fan use. Dr. Barton specifically indicated that he had no previous service treatment records to review and that his opinion was solely based on a history provided by the Veteran. Dr. Barton's opinion was also somewhat contradictory. Dr. Barton stated that the Veteran's hearing loss was at least as likely as not due to prolonged exposure to loud noises, but stated that it seemed unlikely that it would develop from cryptography or air conditioning fan use, which the Veteran, at least in part, reported that he was exposed to during service. The Veteran has specifically indicated that he was exposed to loud and frequent noises from crypto machines and teletypes, as well as Servo motors. The VA examination is of no probative value because the examiner totally ignored the Veteran's reports of continuing hearing loss and tinnitus during and since service. The statement of Dr. Barton is, at best, lacking in detail and, at worst, confusing. A new VA audiological examination is required. Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for bilateral hearing loss and for tinnitus since May 2011. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 2. Schedule the Veteran for a VA audiological examination to determine the nature and likely etiology of his claimed bilateral hearing loss and tinnitus. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently experiences hearing loss and tinnitus. If current hearing loss and tinnitus are identified, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss and tinnitus were incurred in service, or are the result of exposure to acoustic trauma during the Veteran's period of service. The examiner must specifically acknowledge and discuss the Veteran's report that his bilateral hearing loss disability and tinnitus first manifested during his period of service, and have continued since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must 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) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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).