Citation Nr: 1320248 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-20 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied service connection for bilateral hearing loss, tinnitus, hypothyroid, and skin cancer; however, the Veteran did not perfect an appeal as to the issues of service connection for hypothyroid and skin cancer. As such, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus are the only issues remaining before the Board for consideration. See December 2008 notice of disagreement and June 2009 substantive appeal (VA Form 9); 38 C.F.R. § 20.200 (2012). The Board also notes that the Veteran requested a hearing before the Board at the RO in his June 2009 substantive appeal (VA Form 9). However, in an August 2010 written statement, the Veteran indicated that the he no longer wanted a Board hearing and requested that the case be forwarded to the Board for a decision. That submission was acknowledged in a September 2010 letter from the RO. The Veteran has not submitted another request for a Board hearing since that time. As such, the Veteran's request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704.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 The Board finds that further development is necessary prior to the final adjudication of the Veteran's claims. The Veteran contends that he has bilateral hearing loss and tinnitus due to noise exposure during service. Specifically, he asserts that he was exposed to excessive noise from helicopters, small weapons, and rocket and mortar fire while performing his duties as a door gunner. The Veteran's DD-214 does show that he served as a door gunner and had service in the Republic of Vietnam. There is also other evidence of record indicating that the Veteran had post-service noise exposure, to include noise from working in the oil/gas drilling field. The Veteran's service treatment records include a May 1969 separation examination report; however, that report not show results of audiological testing. The Veteran was afforded a VA examination in November 2008 at which time he was diagnosed with bilateral sensorineural hearing loss and tinnitus. In regards to the bilateral hearing loss, the examiner stated that she could not resolve the question of etiology without resorting to speculation because a hearing evaluation was not reported on the separation physical. In regards to tinnitus, the examiner stated that the Veteran's tinnitus was not caused by or a result of acoustic trauma. In so finding, she noted that the Veteran reported tinnitus lasting for about a minute once every two to three months, which she classified as "normal tinnitus" (citing the "Tinnitus Handbook" by Richard S. Tyler (Singular Publishing 2000)), which occurs regardless of noise exposure or hearing loss. The Board notes that the Veteran is competent to assert the occurrence of an in-service injury, to include noise exposure. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Given the circumstances of the Veteran's service discussed above, the Board acknowledges in-service noise exposure. Moreover, the Veteran demonstrated disabling bilateral hearing loss for VA purposes on the November 2008 examination. See 38 C.F.R. § 3.385 (2012). The examiner also assessed him as having tinnitus. Thus, the remaining question is whether the Veteran's bilateral hearing loss and tinnitus are related to his in-service noise exposure. The VA examiner did not provide an opinion as to bilateral hearing loss, as she could not do so without resort to speculation. The Court has explained that opinions which contain the "mere speculation" language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide required degree of medical certainty); see also Jones v. Shinseki, 23 Vet. App. 382 (2010) (noting that the phrase "without resort to mere speculation" must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). The VA examiner did provide an opinion on tinnitus. However, the Board finds that the entire examination report does not reflect full consideration of the Veteran's statements regarding his in-service noise exposure or discussion whether there could be any relationship between the current, intermittent tinnitus and bilateral hearing loss. In the June 2013 informal hearing presentation in the Virtual VA electronic file associated with the Veteran's claims, the Veteran's representative requests that the case be remanded to obtain a medical opinion. Based on the above considerations, the Board finds that the November 2008 VA examiner's opinion is inadequate and that a clarifying opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder to the November 2008 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of in-service evidence of a hearing loss disability during service is not always fatal to a service connection claim. 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. It should also be noted that the Veteran is competent to report a history of noise exposure during service, and his service personnel records show that he served as a door gunner as reported. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss and tinnitus manifested during or are otherwise etiologically related to service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disorder is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disorder is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. An additional examination of the Veteran should be performed if deemed necessary by the person providing the opinion. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ JESSICA J. WILLS 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).