Citation Nr: 1318201 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-22 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active duty service from January 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2001 and August 2008 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The Veteran was afforded a February 2013 videoconference hearing before the undersigned. A hearing transcript is of record. In May 2001, the RO denied service connection for bilateral hearing loss. Following the decision, he submitted additional statements from his wife and friends. They suggested that he had a continuity of symptomatology for sensorineural hearing loss beginning in service. Since the newly submitted evidence was not considered by the RO, the May 2001 RO decision is not final. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Hence, the claim is properly characterized as a service connection claim as set forth on the title page. Id. The Veteran submitted additional evidence following the most recent adjudication by the RO in the September 2012 Supplemental Statement of the Case. In February 2012, he waived his right to review by the agency of original jurisdiction (AOJ) and the Board may consider the evidence in the first instance. 38 C.F.R. § 20.1304(c). A review of the Virtual VA paperless claims processing system includes the hearing transcript, but does not otherwise show any pertinent evidence that is not already associated with the claims folder. This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. REMAND Service treatment records do not show any complaints or finding for hearing loss or tinnitus. The Veteran's DD Form 214 (Report of Discharge) confirms that he served in the Navy, but does not list his military occupational specialty. The Veteran filed a claim for compensation in November 1971; there was no mention of any auditory problems. Workers compensation records from September 1989 include a statement by the Veteran that he had daily occupational noise exposure in his current occupation at a power plant. His treating physician (Dr. Morton) submitted a November 1989 letter stating that the Veteran's hearing loss was related to noise exposure both with and without hearing protection. He recommended hearing aids. In September 2000, the Veteran asserted that his current hearing loss was related to noise exposure in service from working in the Boiler Room. The Veteran had a VA contracted audiology examination in November 2000. He could not recall the onset of hearing loss; however, he stated that tinnitus had developed since his last hearing test (he had audiometric testing earlier in 2000 and in 1992). An audiogram confirmed that he had bilateral sensorineural hearing loss meeting the VA definition of hearing loss. 38 C.F.R. § 3.385. In August 2001, the Veteran submitted statements from his wife and several long time friends. They all reported that the Veteran had hearing problems for many years. His wife and S.S. observed his hearing problems right after separation. The Veteran had another VA contract audiology examination in April 2008. The examiner reviewed the claims folder. He noted that there were no audiograms taken in service and the earliest audiogram was from May 1991. The Veteran reported having in-service noise exposure from working in the Boiler Room. He was unsure as to the onset of tinnitus. An audiogram confirmed that he continued to have bilateral sensorineural hearing loss meeting the VA definition of hearing loss. 38 C.F.R. § 3.385. The audiologist diagnosed bilateral mild to severe sensorineural hearing loss with good speech recognition in both ears. He expressed an equivocal opinion for both hearing loss and tinnitus citing the absence of hearing tests in service. Having carefully considered the medical and lay evidence of record, the Board finds that another VA examination is required to determine the etiology of his current bilateral hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Refer the claims file to a VA physician or audiologist. If the examiner feels the need for another examination, including audiometric testing, this should be done. The examiner is asked to review all pertinent evidence of record, and to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss and/or tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should specifically address all lay and medical evidence of record, including the workers' compensation records dated from the late 1980's. For purposes of the examination, the Veteran's claims that he was exposed to acoustic trauma in service are credible, however, any claim that hearing loss and/or tinnitus was present in service and continued to be symptomatic since then is not credible. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the findings leading to the conclusions. 2. Thereafter, readjudicate the Veteran's claims on appeal. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. 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). _________________________________________________ THOMAS J. DANNAHER 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. See 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs