Citation Nr: 1322164 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-02 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1969 to January 1972. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) "Tiger Team," located at the Regional Office (RO) in Cleveland, Ohio, which denied, in pertinent part, service connection for bilateral hearing loss and tinnitus. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims for service connection for bilateral hearing loss and tinnitus. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). At the outset, the evidence of record demonstrates that the Veteran has been diagnosed with bilateral sensorineural hearing loss and tinnitus. See May 2008 QTC audiological examination and June 2005 audiological evaluation from Dr. A.A. The Veteran was afforded a QTC audiological evaluation in May 2008. The audiologist interviewed the Veteran and conducted pure tone audiometry testing. During the evaluation, the Veteran reported ringing in the ears and right ear pain. The Veteran also stated that his duties in service consisted of being a microwave technician and he reported that he fired weapons with his right hand. Post-service, the Veteran stated that he worked as a telephone repairman and participated in hunting with hearing protection. After performing pure tone audiometry testing, the May 2008 QTC audiologist diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. Further, the audiologist opined that he could not render an opinion as to the etiology of the Veteran's hearing loss and tinnitus without resorting to mere speculation because the Veteran was unable to provide any relevant information as to his service-related duties. It does not appear that the QTC audiologist reviewed the claims file prior to rendering his opinion. A June 2005 private audiological evaluation conducted by Dr. A.A. reveals diagnoses of mild sensorineural hearing loss and tinnitus. Dr. A.A. noted that he instructed the Veteran to abstain from hunting as this would make his hearing loss worse; however an opinion as to the probable etiology of the Veteran's hearing loss or tinnitus was not rendered. Subsequently, the Veteran submitted statements in September 2009 and December 2009 where he reported in-service noise exposure, including artillery fire with 105 and 155 howitzers, mortars, small weapons firing, and machine-gun fire. Specifically, in his December 2009 statement, the Veteran noted that he experienced ringing in his ears during service which has continued to increase in volume since that time. Moreover, the Veteran did confirm his recreational noise exposure (hunting); however, the Veteran reported that he hunted deer one day per year using only one 30 caliber round. Given the Veteran's more recent details regarding in-service and post-service noise exposure, the Board finds that a new VA examination is warranted in order to assist in determining the etiology of the Veteran's bilateral hearing loss and tinnitus. Further, service treatment records reveal normal hearing acuity in a December 1971 service separation medical evaluation; however, it was noted that the Veteran had a scarred right eardrum. It does not appear that the May 2008 QTC audiologist reviewed the claims file prior to rendering his opinion, which would have revealed the notation of scarring of the right eardrum on service separation. Accordingly, on remand, the VA examiner should review the claims file and specifically address the in-service report of scarring of the Veteran's right eardrum. Accordingly, the issues of service connection for bilateral hearing loss and tinnitus are REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA audiological examination to assist in determining the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The examiner is requested to review the claims file and to offer opinions as to the likelihood that the bilateral hearing loss and tinnitus are related to service. The VA examiner should specifically discuss the December 1971 service separation examination report reflecting scarring of the right eardrum, as well as the Veteran's reports of loud noise exposure in service, including artillery fire with 105 and 155 howitzers, mortars, small weapons firing, and machine-gun fire. The examiner should also discuss the Veteran's reports of post-service recreational noise exposure (hunting). In assessing the relative likelihood as to origin and etiology of the bilateral hearing loss and tinnitus specified above, the examiner should express the opinions in terms of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the bilateral hearing loss and tinnitus are causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. After completion of the above development, the claims for service connection for bilateral hearing loss and tinnitus should be readjudicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case, and should be afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). _________________________________________________ J. Parker 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).