Citation Nr: 1313773 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-08 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating action of the above Department of Veterans Affairs (VA) Regional Office (RO). During the appeal, and specifically in September 2012, the Veteran testified at a hearing held before the undersigned Veterans Law Judge in September 2012. A copy of the transcript of this hearing has been reviewed. 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 Board finds that additional development is warranted in order to adjudicate the Veteran's claims fully and fairly. In this regard, the Veteran contends that he has hearing loss and tinnitus that are directly related to excessive noise exposure during service. In various statements, he described his experiences in service and stated that he was exposed to loud noises and sounds produced from artillery gun fire as a result of having to qualify with the M-1 during basic training. He was also exposed to noise from grenades and rocket launchers during additional weapons training. At his personal hearing in September 2012, he testified that he had "near-perfect" hearing prior to service, but that about two months after service discharge he was given an employer-provided hearing examination, which showed a 50-decibel loss in his left ear and a 60-decibel loss in his right ear. He testified that he assembled and installed door locks while employed with the Ford Motor Company, a job that did not require hearing protection. See lay statement dated on November 17, 2006; May 2007 QTC examination report; VA Form 21-4138 dated in August 2007; and September 2012 hearing transcript. The Board finds little controversy in this case as to whether the Veteran was exposed to noise trauma in service. His service personnel records indicate that his military occupational specialty was that of a light weapons infantryman, a specialty generally associated with noise exposure. See VBA Fast Letter 10-35 (September 2010). He received several decorations/badges indicative of exposure to live weapons fire, including the Marksman, 2/C gunner (light machine gun), and Sharpshooter. His report of military noise exposure is competent and credible, given that the circumstances of his reported noise exposure are likely consistent with his duties during basic and advanced training. 38 U.S.C.A. § 1154(a) (West 2002). Thus, the Board concedes his exposure to noise in service. Service treatment records reflect no specific instances of complaints or treatment stemming from noise trauma. However, the Veteran's pre-induction hearing test in March 1961 showed elevated thresholds of 35(40) decibels at 4,000 Hertz (Hz) for both ears, meeting the criteria for disability under VA regulations. See 38 C.F.R. § 3.385 (a puretone threshold in any critical frequency of 40 decibels or greater, three or more frequencies of 26 decibels or greater, or speech recognition score of less than 94 percent); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is between 0 and 20 decibels). [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). That is the figure on the left and is 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 standard has been converted to ISO-ANSI standards and is represented by the figure in parentheses.] In the March 1961 Report of Medical History at pre-induction examination, the Veteran reported that his usual occupation was with the Ford Motor Company. Here, the March 1961 audiometric examination, indicating some degree of hearing loss, constitutes evidence of a pre-service hearing impairment that existed prior to his entry onto active duty in September 1961. Thus, the presumption of soundness at entrance does not attach. Verdon v. Brown, 8 Vet. App. 529 (1996). Further, the Veteran's September 1962 separation examination shows the clinical evaluation of his ears and drums to be normal, and he did not indicate any ear, nose, or throat trouble in his report of medical history. An audiometric examination was not conducted. A December 1962 employer-provided hearing test shows puretone thresholds in the right ear of 0, 15, 20, and 40 decibels at 500, 1,000, 2,000, and 4,000 Hz respectively, and for the left ear at the same frequencies were also 5, 25, 25, and 50 decibels. Although the results of the audiogram appears to show bilateral hearing loss by VA standards, it does not otherwise conform to VA's requirements for evaluating hearing impairment, in that the numerical values for pure tone results at 3000 Hz were not reported and it does not provide the results of any speech recognition scores. See 38 C.F.R. § 4.85(a). The record also contains quadrennial examinations dated in November 1966 and February 1967, both of which meet the criteria for disability under VA regulations. See 38 C.F.R. § 3.385. When examined by VA in May 2007, the Veteran reported decreased hearing and tinnitus since 1961 during basic training. He consistently experienced tinnitus and temporary threshold shifts after firing the M-1. Later, during Advanced Infantry Training, grenades and rocket launchers were fired. He reported that one day he left the field with ringing and hearing loss that proved to be permanent. He reported that after service he worked on an automotive assembly line for 30 years without hearing protection and did not enter a hearing conservation program. He also participated in hunting/recreational shooting and used power tools with ear protection. Audiometric examination revealed puretone thresholds in the right ear of 45, 55, 60, 80, and 95 decibels at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively, and for the left ear at the same frequencies were also 55, 55, 70, 85 and 95 decibels. Speech audiometry revealed speech recognition ability of 12 percent in the right ear and 24 percent in the left ear. The audiologist concluded that the Veteran's hearing was within normal limits for VA purposes at separation, meaning that his current hearing loss and tinnitus were due to something else such as presbycusis and/or exposure to more significant industrial noise during the 30 years he worked at Ford. Unfortunately, the examiner failed to provide any discussion whatsoever on the Veteran's hearing loss noted at enlistment, nor did he adequately address the Veteran's contentions of hearing loss and tinnitus during and since service. The Veteran's conceded in-service noise exposure; his service treatment records indicating hearing loss at 4,000 Hz in each ear upon entry into active service in March 1961; the post-service December 1962 employer-provided examination finding hearing loss at 4000 Hz in each ear; as well as the Veteran's testimony of a continuity of symptoms since his active service raise significant questions regarding the etiology of his hearing loss and tinnitus. Also, given the failure of the VA examiner to fully consider the evidence as documented in the claims files, the Board finds the 2007 VA examination is inadequate. 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 to whether the Veteran's current hearing loss disability preexisted his active service and was aggravated (permanently worsened beyond its normal progression) by his active service. In the alternative, the VA examiner should indicate the likelihood that any hearing loss or tinnitus had its onset during the Veteran's military service. 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/evaluation of his hearing loss and tinnitus. Document the attempts to obtain such records. All such available documents should be associated with the Veteran's claims folder. 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, schedule the Veteran for a VA audiological examination. A detailed history of any hearing loss or tinnitus symptomatology before, during, and after service should be obtained from the Veteran. 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. Also, based on a review of the claims file, the examiner should opine: (a) as to whether the Veteran's preexisting hearing loss underwent an increase in severity during service and whether that increase can be clearly attributed to the natural progress of this disability (as opposed to a permanent worsening of such disability) and (b) as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any tinnitus is consistent with the Veteran's active duty service, or whether such a causal relationship is unlikely (i.e., a probability of less than 50 percent). In answering these questions, the audiologist 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]. The examiner should also consider the objective medical findings in the service treatment records, particularly consideration of the pre-induction audiometric findings, and the post-service audiological evaluations currently of record, including the one provided by Ford Motor Company in December 1962. The audiologist 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 his/her opinion. If it is the opinion of the examiner that the Veteran's tinnitus is 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 either of 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 United States Court of Appeals for Veterans Claims (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).