Citation Nr: 1320822 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-01 698 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and Observer ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active military service from October 1968 to July 1970. The Veteran's decorations for his active service include a Combat Infantryman's Badge (CIB) and a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the VA RO in Chicago, Illinois. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2011 and accepted such hearing in lieu of an in-person hearing before a VLJ. A transcript of the hearing is associated with the claims file. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In January 2012, the Board denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's decision with respect to these issues to the Court. In February 2013, the Court issued a Memorandum Decision vacating the January 2012 decision as it pertained to these issues and remanding the matters for further proceedings consistent with the Memorandum Decision. The appeal has been returned to the Board for action consistent with the Memorandum Decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a thorough review of the claims file, additional development is needed prior to the adjudication of the claims. The Veteran has asserted that he has bilateral hearing loss and tinnitus as a result of noise exposure sustained while serving in combat during active service. A review of the Veteran's DD Form 214 shows that he served in the Republic of Vietnam for nearly one year while he was in active service. As he was awarded both a CIB and a Purple Heart Medal during his active service, the Board concedes that the Veteran was exposed to noise during active service. Although the evidence of record reflects a shift in the Veteran's hearing acuity from his October 1968 Report of Medical Examination to his July 1970 Report of Medical Examination, a review of the service treatment records is negative for complaints of or treatment for hearing loss or tinnitus of either ear. Post service, the Veteran was afforded a VA audiology evaluation in July 2006. At that time, the Veteran reported that he had experienced hearing loss for some time, but that it had become especially noticeable during the last 7-8 years. The Veteran reported noise exposure during active service, in that he had served in combat. The Veteran denied occupational noise exposure subsequent to service, reporting that his primary occupation had been repairing and calibrating scales. He reported that he maintained both cows and pigs and that he did not use hearing protection around the pigs. He also reported that his recreational noise exposure included gunfire while turkey hunting. He reported that he did not use hearing protection while hunting because he would not be able to hear the turkeys. He also reported that he rode ATVs and that he wore a hat with ear flaps, but otherwise, did not use hearing protection while riding. The Veteran reported that he experienced constant ringing in his ears that he first noticed somewhere between 10 and 20 years ago. He reported that the onset was not associated with any particular event. Based on the history provided by the Veteran and the examination results, the examiner diagnosed bilateral hearing loss disability and tinnitus. The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss disability was attributable to noise exposure in active service. In this regard, the examiner reported that the Veteran had excellent hearing sensitivity at the time of his separation from active service; that the Veteran did not become aware of his hearing loss until 30 years following his separation from active service and did not seek actual treatment for his hearing loss for several years after he first noticed a problem; and finally, that the Veteran also had civilian noise exposure subsequent to his separation from active service. The examiner also opined that it was less likely as not that the Veteran's tinnitus was related to noise exposure during active service. In this regard, the examiner reported that tinnitus which resulted from acoustic trauma, such as would occur in combat, was generally described as having an immediate onset and the events surrounding the onset were generally remembered very specifically. She reported that the Veteran's vague description of the onset of his tinnitus was not consistent with tinnitus resulting from acoustic trauma. Additionally, the examiner noted that even if the Veteran's tinnitus had its onset 20 years ago, as reported, that would still have been quite remote from his time in active service. In the February 2013 Memorandum Decision, the Court noted the following notation in the July 2006 VA examination report: "E. DIAGNOSIS: The impression is that he has bilateral sensorineural-type hearing loss with tinnitus, most likely from shelling in Vietnam, and he is referred to Audiology." In light of this notation and the examiner's opinion that it was less likely as not that the Veteran's tinnitus and hearing loss were related to noise exposure during active service, the Board finds that the necessity for a new VA audiological examination is shown for the proper assessment of the Veteran's claims for service connection for tinnitus and hearing loss. 38 U.S.C.A. § 5103A (West 2002). As such, these issues must be remanded in order to schedule the Veteran for a VA examination to determine whether he has a current diagnosis of tinnitus or bilateral hearing loss that was caused or aggravated by his military service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination by an examiner who has not examined the Veteran. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms relating to his claimed hearing loss and tinnitus. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should render an opinion as to whether the Veteran currently has hearing loss of either ear or tinnitus. If so, opinions should be provided as to whether it is at least as likely as not that the Veteran's current hearing loss of either ear or tinnitus is related to his military service. In rendering any opinions, the examiner should concede noise exposure during active service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 2. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the statement of the case (SOC) was issued with respect to these claims. If the benefits sought on appeal remain denied, he and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).