Citation Nr: 1313128 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 11-32 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina 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 Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1945 to March 1950. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was scheduled to testify before a Member of the Board in a November 2012 videoconference hearing. The record indicates that the Veteran did not appear for the scheduled hearing; therefore, the hearing request was withdrawn. 38 C.F.R. § 20.702(d) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). VA must provide a VA medical examination or medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Veteran was afforded a VA audiological examination in June 2010. The VA examiner, however, stated that it is impossible to determine whether the current complaint of bilateral hearing loss and tinnitus are related to noise exposure and/or acoustic trauma in military service without resorting to mere speculation. As the opinion provided was ultimately speculative, the Board finds that it is of no probative value, and is, thus, insufficient. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.) The Veteran contends that currently diagnosed bilateral hearing loss and tinnitus are related to exposure to engine noise and heavy equipment noise in a mechanic shop while in service. He reported that he did not use hearing protection during service. The Board finds that the Veteran had some degree of exposure to acoustic trauma in service, as well as some degree of post-service occupational and recreational noise exposure. The Veteran's WD Form 53 and DD Form 214 show that he served as a truck driver from November 1945 to March 1950. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS in an area similar to that of the Veteran's (motor transport operator) have a moderate probability of exposure to hazardous noise. In the March 2010 claim, during a June 2010 VA examination, and in a December 2011 substantive appeal, the Veteran identified in-service exposure to heavy equipment and engine noise while working as a mechanic, and he identified exposure to construction equipment noise during his training in engineering school. The Board finds that the report of exposure to at least some engine noise and heavy equipment noise in service is credible, as it is consistent with the Veteran's duty as a truck driver generally, and because a WD Form 53 confirms that the Veteran was trained for eight-and-a-half weeks in working with mechanical construction equipment. While the Veteran reported that he had six months of post-service occupational noise exposure and denied having recreational noise exposure during a June 2010 VA examination, during a prior March 2010 VA audiology consultation, the Veteran described an eight-year history of occupational noise exposure to machinery, and some recreational, woodworking noise exposure. The Board finds that the Veteran has not provided a fully accurate history with regard to post-service noise exposure; therefore, the Board finds that the history given by the Veteran to the June 2010 examiner omitted key facts of an eight-year history of post-service occupational noise exposure and post-service recreational noise exposure. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds that a new medical opinion is necessary to help address the etiology of currently diagnosed bilateral hearing loss and tinnitus based on the Veteran's history of both in-service and post-service noise exposure. For these reasons, the Board finds that a remand for a VA opinion, based on a review of the relevant evidence of record, is necessary to assist in determining if hearing loss and tinnitus are related to noise exposure in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should refer the case for a VA audiological opinion regarding service connection for bilateral hearing loss and tinnitus. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, an examination should be afforded the Veteran. The relevant documents in the claims folder should be made available for review in connection with this request. The VA audiology examiner should offer the following opinions: Is it at least as likely as not (a 50 percent or greater probability) that currently diagnosed hearing loss began during service or is otherwise linked to noise exposure in service? Is it at least as likely as not (a 50 percent or greater probability) that currently diagnosed tinnitus began during service or is otherwise linked to noise exposure in service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In providing this opinion, the examiner should note that the Veteran has credibly reported having at least some degree of engine noise and heavy equipment noise exposure in service, and he credibly reported having an eight-year history of post-service occupational noise exposure as well as some recreational noise exposure during a March 2010 VA audiology consultation. The VA examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. The RO/AMC should review the VA opinions to ensure that they are in compliance with this remand. If it is deficient in any manner, the RO/AMC should implement corrective procedures at once. 3. After all development has been completed, the RO/AMC should readjudicate the issues of service connection for bilateral hearing loss and tinnitus. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). The Veteran 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). _________________________________________________ J. PARKER 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).