Citation Nr: 1316565 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-43 582 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 1960. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In connection with the Veteran's appeal, he requested a local hearing with a Decision Review Officer (DRO). However, in correspondence dated in December 2009, the Veteran stated that he wanted his hearing before a DRO to be cancelled. The Veteran also requested a Travel Board hearing before a Veterans Law Judge (VLJ). In a June 2010 letter, the Veteran was notified that the hearing was scheduled for July 14, 2010. The Veteran did not appear for the hearing and has not provided good cause for his absence. Thus, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704. 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 In this case, the Veteran was not provided a VA examination with respect to his claimed disabilities. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; establishes that the Veteran suffered an event, injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the April 2009 rating decision, the RO denied the Veteran's claims for service connection, in part, because the Veteran did not have current diagnoses of hearing loss or tinnitus. However, an April 2009 VA audiology consult note reflects a report of constant tinnitus and the Veteran is competent to state that he experiences tinnitus. In this regard, tinnitus is subjective and the kind of condition to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With respect to bilateral hearing loss, the April 2009 VA audiology consult note shows that the Veteran reported a longstanding asymmetry loss in hearing since service. The examining physician explained that the results were not adequate for rating purposes. The right ear reflected moderately severe mixed hearing loss at 250 to 3000 Hertz, sloping to a profound mixed hearing loss at 4000-8000 Hertz. With respect to the left ear, there was normal hearing at 250 to 2000 Hertz, sloping to a mild-to-profound sensorineural hearing loss at 3000 to 8000 Hertz. The speech recognition results were excellent bilaterally with 100 percent in the right ear and 100 percent in the left ear. The examining physician stated that the Veteran was not ready for amplification at this time. However, in reviewing the attached April 2009 audiogram, the results indicate that the Veteran does have a bilateral hearing loss disability in accordance with VA regulations. 38 C.F.R. § 3.385 directs that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Here, the April 2009 audiogram indicates that there are readings in exess of 40 decibels with respect to both ears at least at 4000 Hertz. Therefore, the Board finds that the Veteran has current bilateral hearing loss disability. Id. With respect to an in-service event, injury, or disease, the Veteran has claimed that he has experienced long-standing hearing loss and tinnitus since his period of active service. Specifically, the Veteran stated that he served in the United States Navy and was exposed to noise from cannons. The Board notes that the Veteran served in the Navy; however, his military occupational specialty (MOS) of "quarter master" is not an MOS traditionally associated with noise exposure. Even so, the Board notes that the Veteran is competent to report his experiences during active service to include being exposed to noise from cannons. The Board recognizes that the service treatment records are absent for any documentation or complaints related to bilateral hearing loss or tinnitus. However, there is no separation report of medical history associated with the service treatment records. The separation report of medical examination indicated results of 15/15 on a whispered voice hearing test. However, as noted in VA Training Letter 10-02, which was issued in March 2010 regarding the adjudication of claims for hearing loss, "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02) (March 18, 2010). In that letter, the Director of the VA C&P Service stated that "whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur." Id. In light of the above, the Board concludes that a VA examination is needed to render an informed decision on the claims. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided a VA examination to ascertain the nature and etiology of his bilateral hearing loss and tinnitus. The claims file should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or more probability) that the bilateral hearing loss disability had its onset in service or is otherwise caused by or related to service. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or more probability) that the tinnitus had its onset in service or is otherwise caused by or related to service. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has contended that he had noise exposure in service. In particular, he has asserted that he was exposed to cannon noise when serving on a ship during active service, and it should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. A complete rationale should be given for any opinion provided. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims; and that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655. 3. After completion of the above, the RO/AMC should review the record since the September 2009 Statement of the Case and determine if service connection may be granted. If the benefit sought is not gratned, the Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise 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). _________________________________________________ U.R. POWELL 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).