Citation Nr: 1320764 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-17 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in August 2011, a statement of the case was issued in June 2012, and a substantive appeal was received in June 2012. In May 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the claims file. 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 Veteran contends that he acquired bilateral hearing loss and tinnitus as a result of exposure to noise trauma during his active duty service. He served as an aviation structural mechanic, and it is not in dispute that he was exposed to hazardous noise levels in the course of such service (he has testified that he crawled into the engine intakes while the engine was running to check the hydraulic reservoir for leaks). VA audiometry puretone thresholds show that the Veteran has a hearing loss disability as defined in 38 C.F.R. § 3.385; it is not in dispute that he has a bilateral hearing loss disability. What he must still show to establish service connection for his bilateral hearing loss is that the disability is related to the noise trauma in service (or is somehow otherwise related to service). A hearing loss disability was not noted in service. The Veteran has testified that his hearing has become progressively worse since the 1960s (his service separation was in May 1960). In such circumstances, the matter of a nexus between the current hearing loss disability and remote noise trauma becomes a medical question that requires medical guidance. A review of the record found that the medical evidence in this matter is incomplete and inadequate, and requires further development. Specifically, the Veteran testified that he sought VA treatment for hearing loss complaints 5 to 6 years previously (thus, in 2006 or 2007). However, copies of these evaluation reports are not available for review in the claim file, including the computerized electronic Virtual VA claims-file. As VA treatment records are constructively of record; and may contain pertinent information, they must be secured. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, on July 2011 VA audiological evaluation and June 2012 addendum, the audiologist noted the Veteran's history of noise trauma in service and opined, in essence, that because the Veteran's hearing was documented as within normal limits at the time of separation from service, his hearing loss was less likely as not related to military service noise exposure. It is established by legal precedent (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)) that the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by audiometric testing during service in order for service connection for hearing loss to be granted. Consideration also must be given to whether the evidence suggests a decrease in hearing acuity during service (even if not meeting the criteria of 38 C.F.R. § 3.385) together with evidence of acoustic trauma during service. Accordingly, the examiner's explanations in the July 2011 VA audiological evaluation and June 2012 addendum are inadequate in that they appear to have only considered whether the provisions of 38 C.F.R. § 3.385 were met during the Veteran's service. Further action is needed to remedy the opinion deficiencies. 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. Appropriate action should be taken to obtain copies of all VA audiology evaluation reports, to specifically include audiology consulation reports in 2006 and/or 2007. If these records are unavailable, it should be clearly documented in the claims file. 2. The RO should arrange for the Veteran to be examined by an appropriate examiner to determine the etiology of bilateral hearing loss and tinnitus. If in the examiner's opinion further audiometric studies would be helpful, arrangements should be made for such to be completed. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran, consideration of his accounts (i.e., that he has noticed diminished hearing acuity since service), and review of the claims file, and with consideration of sound medical principles, the examiner should 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 tinnitus are etiologically related to his military service (and specifically to his exposure to aircraft engine noise trauma therein). Detailed reasons should be given for the opinion, to specifically include discussion of whether service treatment records suggest any decrease in hearing acuity during service (from entrance to discharge) even if hearing acuity was still within normal limits during service. 3. In the event the Veteran fails to report for the examination, the claims file should nevertheless be referred to an appropriate examiner for review and opinion in response to the above-posed question. 4. The RO should then re-adjudicate the claims. If either remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ ALAN S. PEEVY 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).