Citation Nr: 1320136 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-21 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1945 to January 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the Veteran's claims for service connection for hearing loss, and tinnitus. In a March 2012 decision, the Board denied service connection for hearing loss and tinnitus. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). By January 2013 Order, the Court vacated the Board's March 2012 decision and remanded the matter to the Board for compliance with instructions contained in a Joint Motion for Remand of the parties. The case has been returned to the Board for further appellate action. 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 VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). The Veteran contends that he has bilateral hearing loss and tinnitus related to noise exposure during active military service. Unfortunately, all of the Veteran's service treatment records are not available. See October 2010 Formal Finding on the Unavailability of Service Treatment Records. The available records include a December 1946 separation examination report, which shows the results of a whispered voice hearing test as 15/15, bilaterally. The report also indicates that there were no ear abnormalities. The Veteran has not reported any specific in-service findings referable to hearing loss or tinnitus. However, service personnel records show that his military occupation specialty was "duty soldier," that he was an expert with a carbine, and that his last unit assignment was with the 1st Tactical Reconnaissance Squadron. Therefore, the Board accepts the Veteran's reports of noise exposure in service. A claim (VA Form 21-526), received in September 2006, shows that the Veteran reported a history of employment with the "Corps of Engineers" ending in 1991 (no starting date was provided). The post-service medical evidence consists of VA and non-VA reports, dated between 1987 and 2011, to include a VA examination report, dated in January 2011. An August 1987 VA examination report shows that on examination, the Veteran's auditory canals and tympanic membranes were intact, with no perforation or discharge. There were no complaints of either hearing loss or tinnitus. A July 2007 VA examination report shows that there was no report of symptoms for the ears ("ear ros"). On examination, hearing was "grossly normal" bilaterally (audiometric tests were not done). The pinna and external ear canals, and the tympanic membranes, were normal. There was no ear discharge. There were no relevant complaints, and there was no relevant diagnosis. The Veteran was afforded his most recent VA examination in January 2011, in response to his claim. The Veteran reported that he did not have trouble hearing, although he had chronic excessive noise exposure from guns and airplane engines while in the military. His history was noted to be positive for military, occupational, and recreational noise exposure. He denied the use of hearing protection while in the military, at his job at an automobile plant, or during recreational hunting and shooting. The Veteran did complain of constant tinnitus. The report notes, "The Veteran is not sure when his tinnitus began. He could not say for sure whether it started in the military." The Veteran was diagnosed with sensorineural hearing loss in the right and left ears. The examiner, an audiologist, opined that the Veteran's hearing loss, and tinnitus, were both "less likely as not (less than a 50/50 probability) caused by or a result of military noise exposure." In rendering his opinion, he noted that a whispered voice test had been performed in 1946, but that it did not provide threshold-specific information. The examiner further stated, "The Veteran reports that he has no idea when his tinnitus began. He could not place its onset during military service with any certainty. He reports intervening noise exposure from factory work and recreational hunting and shooting with no hearing protection." The examiner also noted that the Veteran denied hearing problems and could not relate any hearing loss to his military service. The examiner further stated that although the Veteran currently has hearing loss that is "possibly consistent with noise exposure," that the Veteran had not associated hearing loss with his service, and that his (post-service) occupational and recreational (hunting and shooting) noise exposure are possible causes of his current condition. In the JMR, the parties agreed that the January 2011 VA examiner's opinion is inadequate because he failed to provide an adequate rationale for his negative conclusions. Specifically, the parties agreed that although the examiner stated her conclusion and listed her supporting data, she did not offer a reasoned medical explanation which connected her supporting data with her conclusion. In order to be adequate, VA examination reports must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting them. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). In particular, the Joint Motion notes that the examiner noted that although the results of the Veteran's hearing test showed hearing loss, possibly consistent with noise exposure, he "denied current problems with hearing." However, the examiner failed to explain why the Veteran's subjective denial of "current problems with hearing" was more convincing than the results of the objective hearing tests required by regulation, which showed hearing loss in both ears. The Joint Motion also notes that the examiner's reasoning that the Veteran, a layperson, failed to provide a nexus between his hearing loss and his military service, is confusing, given that it was the examiner who was requested to provide a medical opinion regarding that question. See Layno v. Brown, 6 Vet.App. 465, 470 (1994) (Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."). The Joint Motion noted further that the examiner's mention of intervening noise exposure being additional "possible" causes of the Veteran's current condition lacked a relevant accompanying discussion regarding likelihood. See Obert v. Brown, 5 Vet. App. 30 (1993)(opinions that merely suggest the possibility of a link are insufficient for adjudication purposes). Finally, with regard to tinnitus, the Joint Motion notes that the examiner merely restated the Veteran's reports that he had no idea when his tinnitus began, and noted that the Veteran could not provide a nexus between the onset of tinnitus and his military service. The examiner also noted that the Veteran had intervening occupational and recreational noise exposure. She then concluded that the tinnitus was less likely as not caused by or a result of military noise exposure. However, the examiner did not provide a reasoned medical explanation connecting her supporting data with her conclusion. Based on the foregoing, the Board finds that the July 2011 VA examiner's opinion does not contain enough information upon which to base a decision. VA regulations provide that, where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's bilateral hearing loss and associated tinnitus is necessary. 38 U.S.C.A. § 5103A(d) (West 2002). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). 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. Afford the Veteran a VA audiology examination to determine the etiology of any current hearing loss and tinnitus. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that current hearing loss or tinnitus is the result of noise exposure or other injury or disease in active service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries, including noise exposure, as well as symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. If any benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, 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). _________________________________________________ F. JUDGE FLOWERS 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).