Citation Nr: 1312702 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 11-02 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2012, the Veteran testified at a video conference hearing before the undersigned. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. He contends that he was exposed to loud noise from gun and artillery fire during his military service. Specifically, he claims that he served as a crewman operating a 155 millimeter howitzer. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Historically, the Veteran served on active duty in the Army from September 1954 to September 1957. His report of separation, Form DD 214, noted that he served as an artillery crewman. Thus, the record clearly establishes that the Veteran was exposed to noise during service. Unfortunately, almost all of the Veteran's service treatment records have been destroyed in a fire. The one exception, his June 1957 separation examination, noted that his ears were normal. It also noted that he exhibited hearing acuity of 15/15, bilaterally, on whispered voice testing. In April 2009, a VA audiological examination was conducted. The examination report noted the Veteran's history of inservice noise exposure, and his current complaints of having difficulty understanding conversation with noise in the background. An audiological evaluation revealed bilateral hearing disability that meets the standard outlined for a hearing impairment disability for VA purposes. 38 C.F.R. § 3.385 (2012). The VA examiner opined that, based upon these facts, establishing a causal link between the Veteran's current hearing loss and his military service would require speculation. In making this determination, the VA examiner noted that the whispered voice test, performed during his separation examination, is not sensitive to the type of hearing loss associated with loud noise. The VA examiner also noted that the Veteran had not had any tinnitus for the past several years. In December 2012, a video conference hearing was conducted before the Board. At the hearing, the Veteran testified that he started to first experience ringing in his ears after firing missions while in service, and that he continued to have intermittent tinnitus ever since. The Veteran's spouse testified that the Veteran has had problems with his hearing since she first met him 35 years ago. In January 2013, the Veteran submitted a January 2013 private audiological evaluation which noted the Veteran's current complaints of intermittent tinnitus. It also noted a diagnosis of bilateral sensorineural hearing loss. The law does not require evidence of an inservice hearing disability that meets the standard outlined for a hearing impairment disability for VA purposes. 38 C.F.R. § 3.385 (2012). There need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). After reviewing the Veteran's claims file, the Board finds the April 2009 VA audiological examination to be inadequate. As for the Veteran's hearing loss, the VA examination report is silent as to the date of onset of this condition. Moreover, evidence has been submitted since this examination was conducted indicating that the Veteran continues to experience intermittent tinnitus. Thus, an etiological opinion concerning this condition is required. McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication). Accordingly, a new VA audiological examination must be conducted, and the VA examiner must address the issue of whether any degree of the Veteran's current hearing loss is related to his documented inservice noise exposure. In doing so, the examiner should note and consider the Veteran's specific contentions concerning the onset of his hearing loss and tinnitus; and whether the current audiological findings suggest any relationship to acoustical trauma. Accordingly, the case is remanded for the following actions: 1. Request that the Veteran identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for hearing loss and tinnitus, during the course of this appeal. All attempts to secure this evidence must be documented in the claims file by the RO if the requested records are not obtained. 2. Schedule the Veteran for the appropriate examination to determine whether any bilateral hearing loss and tinnitus is related to his military service. The claims folder and any pertinent records on Virtual VA must be made available to the examiner. After a review of the entire evidence of record, the examiner must render an opinion, in light of the service and post service evidence of record, as to: (a) Whether any degree of current hearing loss is related to the Veteran's period of military service (September 1954 to September 1957), or to any incident therein, to include as due to noise exposure; and (b) Whether the Veteran's current tinnitus (even if only intermittent) began as a result of inservice noise exposure. The Veteran's military occupational specialty, the Veteran's lay statements regarding the history of inservice and post service noise exposure, the objective medical findings in the service medical records, the previous audiological evaluations currently of record, and any other pertinent clinical findings of record, must be taken into account. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims remaining on appeal must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket. Expedited handling is required. 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). ____________________________________________ L. M. BARNARD Acting 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).