Citation Nr: 1315005 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 12-36 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana 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 Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1960, with additional service in the Marine Corps Reserve. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains no additional documents pertinent to the issues on appeal. 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. VA will notify the appellant if further action is required. REMAND The Board's review of the record reveals that further action on the claims is warranted. The Veteran contends that he has hearing loss and tinnitus that were caused by noise exposure from fighter jets during his active duty service. The Veteran's service treatment records confirm that he was exposed to jet engine noise in service. A November 1958 Hearing Conservation Data report notes that the Veteran was exposed to noise for 6 hours a day for 2 years with no hearing protection. The Veteran's service treatment records show that in July 1956 the Veteran was reported to have normal test results from a "whisper test." In December 1957 the Veteran reported having a stopped up feeling in his left ear, and in June 1958 the Veteran reported having pain in his right ear for three days. The Veteran's hearing conservation audiology testing in November 1958 and March 1959 show puretone thresholds from 0 to 10 decibels for all frequencies in the right ear and 0 to 20 decibels for all frequencies in the left ear. Under the American Standards Association (ASA) audiology examination standards, the Veteran's discharge examination audiological test results show puretone thresholds from -10 to 25 decibels in the right ear and -10 to 10 decibels in the left ear. While the Veteran's puretone thresholds show some improvement at the very highest frequencies (6000 and 8000 Hertz), the findings show some hearing loss threshold shifts, especially in the right ear, which showed an upward shift of 10 decibels at 500 Hertz, 15 decibels at 1000 Hertz, and 5 decibels at 2000, 3000, and 4000 Hertz. When the ASA numbers are converted to ISO (ANSI) numbers currently used, then show readings of 25 at 500 hertz in each ear, and 20 at 1000 hertz in each year. Conversion of the left ear at 6000 hertz shows a 30. These findings may be suggestive of some hearing loss when conversion is done. At examination for separation, when converted, readings are 35 at 250, 500, and 1000 hertz in the right ear. There is a 30 at 250 in the left ear and a 25 at 500 hertz in that ear. High frequencies had, as noted, improved. In April 2011 the Veteran was afforded a VA audiological examination. He reported that he was exposed to jet engine noise during service and that after service he worked in sales but had some occasional exposure to factory noise. The Veteran reported that he was diagnosed with tinnitus while still in service and that his tinnitus was constant. The examiner diagnosed the Veteran with mild to profound sensorineural hearing loss bilaterally and indicated that tinnitus was at least as likely as not a symptom associated with hearing loss. However, the examiner stated that the Veteran's service treatment records showed no significant threshold shifts during service and no significant decrease in hearing at separation. The examiner then opined that because the Veteran's "[h]earing thresholds at separation showed improved hearing sensitivity in comparison with Hearing Conservation Program hearing tests" and the separation examination showed "no evidence of beginning of hearing loss," it was less likely than not that the Veteran's hearing loss and tinnitus were due to noise exposure in service. Unfortunately, this examination report is not sufficient to allow the Board to decide the current claim, and the case must be remanded for a new VA examination. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Reviewing the service treatment records, as noted that the audiology examinations performed by service examiners were reported in standards set forth by the ASA. Currently, audiology examinations are reported in standards set by the International Standards Organization (ISO) - American National Standards Institute (ANSI). As such, to review the Veteran's service audiology examinations, the findings in ASA units must be converted to ANSI units. In this instance, the April 2011 VA examiner's statements that the Veteran's separation examination testing showed improved hearing sensitivity in comparison with Hearing Conservation Program hearing tests and that there was no evidence of beginning of hearing loss are factually inaccurate, and the accompanying medical opinion is therefore not probative evidence regarding the etiology of the Veteran's current hearing loss. Id. As noted, conversion reveals some suggestion for readings over 20, at least suggestive of defective hearing. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). It is noted that hearing loss under 38 C.F.R. § 3.385 need not be shown in service to establish service connection. Here there is some suggesting of hearing abnormality in lower and at higher frequencies at various tests. Thus, examination with these reported findings is indicated and a new opinion is requested. As the current VA opinion is inadequate for rating purposes, the RO/AMC should arrange for the Veteran to undergo an additional VA audiological examination, with full consideration to the Veteran's service treatment records provided. See Barr, 21 Vet. App. 303. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may well result in denial of the claim (as the original claim will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO/AMC must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. The record also indicates that the Veteran has been receiving treatment for hearing problems at the Indianapolis VA Medical Center (VAMC). Currently, the claims file contains his VA treatment records from July 2004 to December 2010. As there may be more recent treatment records directly pertinent to the current issue, all outstanding VA treatment records from the Indianapolis VAMC should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 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 obtain from the Indianapolis VAMC all outstanding, pertinent records of treatment of the Veteran related to hearing loss from December 2010 to the present. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. 2. The Veteran should be accorded an examination by a qualified audiologist for the purpose of determining the current nature and likely etiology of any hearing loss and tinnitus disabilities. The claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished. All appropriate testing should be conducted, and the examiner must provide an opinion as to whether it is as likely as not (that is, a probability of 50 percent or greater) or less likely than not (that is, a probability less than 50 percent) that any current hearing loss disability and tinnitus disability had their origin in service or are in any way related to the Veteran's active service. In responding the examiner is asked to indicate whether there is other likely etiology of hearing loss, if unrelated to service, to include advancing age, infection, or other cause. The examiner must discuss the Veteran's service treatment records and the significance of any puretone threshold shifts that occurred during the Veteran's service. The examiner should review the body of the remand above and take note of the apparent abnormal findings at the reported frequencies when converted to ISO (ANSI) findings. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his lay statements must be taken into account in formulating the opinion. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 4. The RO/AMC must ensure that all medical examination and opinion reports comply with this remand and the questions presented above. The RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the above, the RO/AMC should review the evidence and determine whether the claims may be granted. If not, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).