Citation Nr: 1322773 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 13-02 326 ) 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 Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an April 2011 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claims on appeal that has been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The VA Form 21-526, Veteran's Application for Compensation or Pension, received in September 2010, indicates that the Veteran has received VA treatment from the VA medical Center (hereinafter "VAMC") in Miami, Florida. Virtual VA was reviewed and did not reveal any VA treatment records. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must obtain any outstanding records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Additionally, review of the record indicates that a new VA examination and medical opinion be obtained to evaluate the nature and etiology of the current bilateral hearing loss and tinnitus. In January 2011, a VA examiner reviewed the claims file and noted the Veteran's service treatment records showed mild high-frequency bilateral hearing loss on entrance examination in March 1964, but showed normal hearing loss in both ears on separation examination in March 1966. The examiner diagnosed the Veteran with VA compensable hearing loss and current tinnitus, and provided an opinion as to the nature and etiology of the Veteran's diagnosed disabilities. Specifically, the examiner opined that the Veteran's claimed bilateral hearing loss and tinnitus were not caused by or a result of his claimed in-service noise exposure. The examiner explained that the Veteran had normal hearing thresholds in both ears at the time of separation, and that he reported his tinnitus began in 1971, 5 years after he separated from service. The examiner noted that the Institute of Medicine Report on Noise Exposure in the Military concluded that there was no scientific support for delayed onset noise-induced hearing loss/tinnitus that occurred weeks, months, or years after the exposure event. The examiner concluded that based on this finding and given the Veteran's hearing loss was within normal limits at the time of the separation examination, and that he reported his tinnitus began 5 years after separation, the Veteran's current hearing loss and tinnitus were not caused by or a result of in-service noise exposure. The Board finds the January 2011 VA examiner's opinion to be of limited probative value as the examiner did not have the ability to review the outstanding VA treatment records from the Miami VAMC prior to or during the examination. These records may have direct bearing on the Veteran's claims, as they may contain evidence of continuity of symptomatology since the Veteran's separation from service. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Also, the Board notes that prior to November 1967 service department audiometric results were reported in accordance with the standards set by the American Standards Association (hereinafter "ASA"). Since November 1, 1967, the results were reported in accordance with the standards set by the International Standards Organization (hereinafter "ISO")-American National Standards Institute (hereinafter "ANSI"). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Board notes that the VA examiner failed to provide a conversion of the in-service hearing acuity scores, taken from 1964 to 1966, to ISO values. For purposes of comparison, the table below shows the ASA measurements recorded on Report of Examination for the purpose of induction in March 1964, with the comparable ISO (ANSI) measurements in adjacent parentheses. At the time of the March 1964 induction examination, puretone thresholds, in decibels, were noted as follows: HERTZ For ISO add RIGHT LEFT 500 (+15) 15 (30) 10 (25) 1000 (+10) 15 (25) 10 (20) 2000 (+10) 15 (25) 15 (25) 3000 (+10) 25 (35) 25 (35) 4000 (+5) 35 (40) 35 (40) The Board notes that this conversion chart indicates that the Veteran experienced VA compensable hearing loss on induction into his military service. On remand, the examiner should specifically indicate whether any preexisting bilateral hearing loss increased in severity beyond the natural progress of the disease during the Veteran's military service. The Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the examiner should address the Veteran's lay assertions that address continuity and chronicity of his bilateral hearing loss and tinnitus symptomatology in the report. The Veteran is competent to indicate that he experiences symptoms of hearing loss and tinnitus in service and since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). The Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, the Board finds it necessary to obtain additional VA examination and medical opinion to evaluate the nature and etiology of the Veteran's bilateral hearing loss and tinnitus, noted in the complete record and on examination. See 38 U.S.C.A. § 1110, 1131, 1310 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). Accordingly, the Board finds that a new examination and opinion is in order. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This review must be conducted with a review of the claims folder including Virtual VA. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must obtain copies of all outstanding VA treatment records not yet associated with the claims file, to specifically include any VA treatment records from the Miami, Florida VAMC. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. It is not necessary for records existing in the Virtual VA system to be printed. 2. The RO/AMC must arrange for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. All indicated studies and tests are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All indicated studies and tests, to include audiometric testing if warranted, are to be performed, and a comprehensive social, educational and occupational history are to be obtained. After reviewing the record, considering the Veteran's contentions, and examining the Veteran, the examiner should address the following questions: a. Did the Veteran's preexisting bilateral hearing loss undergo a permanent increase in the severity of the underlying pathology during service? b. If there was a permanent increase in the severity of the Veteran's bilateral hearing loss during service, then was the increase due to the natural progression of the disability? c. Is it at least as likely as not that the Veteran's current bilateral hearing loss is otherwise related to the Veteran's military service? d. Is it at least as likely as not (50 percent probability or more) that the Veteran has tinnitus that is due to any noise exposure sustained as an event of the Veteran's service or otherwise due to service? The examiner is reminded that prior to November 1967 service department audiometric results were reported in accordance with the standards set by the ASA. Since November 1, 1967, the results were reported in accordance with the standards set by the ISO-ANSI. The findings should be appropriately converted to facilitate proper comparison. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 3. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the claims for service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. 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). 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). _________________________________________________ S. L. Kennedy 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).