Citation Nr: 1312889 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-16 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran's May 2009 substantive appeal reveals that the Veteran requested a local hearing with a Decision Review Officer (DRO) at the Boise RO. In June 2009, the Veteran expressed his desire to withdraw his request for a RO hearing. 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 claims service connection for bilateral hearing loss and tinnitus. He essentially claims that these conditions are related to in-service noise exposure that he suffered while in service, including while serving aboard the U.S.S. Henderson in Vietnam. Statements made by the Veteran and on his behalf have listed sources of acoustic trauma that include 5 inch cannons, .50 caliber machine guns, grenades, river boat engines, hovercrafts, and helicopters. He has described serving as a projectile man, with a rank of either E-3 seaman or E-4 boatswain mate, and as a river patrol boat gunners mate. He reported having engaged in combat and combat river operations for one year in Vietnam and having conducted bombardment operations during a second tour as a five-inch gunner along the coast of North Vietnam. The Veteran's DD Form 214 does not list a military occupational specialty (MOS), but it does list a related civilian occupation in water transportation occupations. It notes that he received the Vietnam Service Medal with One Bronze Star, the National Defense Service Medal, the Navy Unit Commendation Ribbon, and the Republic of Vietnam Campaign Medal with Device. It reflects that his last duty assignment was in United States Naval Support Activity in Da Nang. The Board finds that the acoustic trauma that has been described by the Veteran is consistent with the circumstances surrounding the Veteran's military service, as the Veteran is competent to describe loud noise exposure. Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, the Board has no reason to doubt the Veteran's credibility on this matter. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board therefore concedes in-service acoustic trauma. In terms of in-service hearing loss, the Veteran's service treatment records contain a February 1966 enlistment examination report noting audiometry readings of 15, 10, 10, 15 and 20 decibels in the right ear and 15, 10, 10, 10, and 30 decibels in the left ear. (Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Thus, the readings in this case have been converted from ASA units to ISO units.) He denied any history of, or current, ear trouble on his February 1966 enlistment medical history report. His January 1970 release from active duty examination report notes whispered voice and spoken voice scores of 15/15 bilaterally. The Veteran's service treatment records do not reflect that he ever complained of, or sought treatment for, hearing loss or tinnitus in service. In terms of post-service noise exposure, the Veteran has reported having worked in a sawmill for a short period after service. He subsequently worked in construction In a May 2009 statement, the Veteran reported that employers have required that he wear hearing protection since 1973, as required by the Occupational Health and Safety Act (OSHA) of the Department of Labor. He has also reported having engaged in hunting post-service. It is unclear whether he wore hearing protection for this activity. The record also indicates that the Veteran has current diagnoses of bilateral hearing loss and in May 2008, he underwent a VA examination to determine whether these disabilities are etiologically related to service. The VA examiner opined that the Veteran's hearing loss is less likely than not related to his active duty noise exposure, citing both that "[t]he Veteran had hearing within normal limits at the time of separation from the Navy," and that "[h]e has had a great deal of both civilian and recreational noise exposure." The Board finds that this examination report relies too heavily on a finding that "[t]he Veteran had hearing within normal limits at the time of separation from the Navy," as it does not address the fact that the only measure of the Veteran's hearing at separation was in the form of spoken and whispered voice testing. This rationale is problematic for two reasons. First, the Board notes that high frequency hearing loss is the type of hearing deficiency that would not be revealed from a whispered voice test. See Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations at 12. Because the examination report does not address this factor, a new examination and etiology opinion are required. Second, the Board notes that the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Because this aspect of the applicable law and regulations does not appear to have been contemplated in the May 2008 VA examination report, a remand for a new examination and opinion is required. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice of the evidence required to substantiate a claim for secondary service connection just in case the claims file raises the issue as to whether the Veteran's claimed tinnitus disability was caused by or aggravated beyond normal progression as a result of any hearing loss which is found to be related to service. 2. Contact the Veteran and request that he identify all medical facilities that have treated him for bilateral hearing loss and tinnitus since service. The RO/AMC should take appropriate steps to obtain all identified records. Proper notification should be sent to the Veteran for any records that cannot be obtained. 3. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current hearing loss and tinnitus. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran, to include his reports of in-service and post-service noise exposure. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should express an opinion as to whether it is at least as likely as not (at least a 50 percent probability or more) that any hearing loss and/or tinnitus disability was incurred in service or is related to service, including to any in-service acoustic trauma. If it is determined that hearing loss is related to the Veteran's military service, the examiner should address whether it is at least as likely as not (at least a 50-50 percent probability) that any diagnosed tinnitus was caused or aggravated (i.e., permanently worsened, as opposed to a temporary or intermittent flare-up of symptomatology which returns to baseline level of disability) by the Veteran's hearing loss disability. The examiner should explain his/her answer and, if applicable, attempt to identify baseline level of severity of the tinnitus before aggravation and discuss the aspect of the disability which is due to aggravation. Any opinion expressed must be accompanied by a complete rationale. 4. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. OSBORNE 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).