Citation Nr: 1323547 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-02 506 ) 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: Texas Veterans Commission ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to October 1962. His military occupational specialty was that of a radio relay operator. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, denying the Veteran's original claims for service connection for hearing loss and tinnitus. In his substantive appeal of December 2010, the Veteran requested a hearing before the Board, sitting at the RO, and that proceeding was thereafter scheduled to occur in October 2012. However, prior to the conduct of that hearing, the Veteran by his written communication to the RO cancelled his request for a hearing and requested that his claims be decided on the basis of the evidence of record. No other request for a hearing remains pending. The appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Veteran asserts that his hearing loss and tinnitus originated in service in or about 1961. He and his representative allege that the disorders in question resulted from inservice acoustic trauma, based on exposure to artillery fire and excessive noise levels in performing military duties as a radio operator, each of which was accomplished without ear protection. Allegations are also advanced that the Veteran sustained ear trauma in a motor vehicle accident and that such event was not referenced or apparently considered by the VA examiner on a recent VA medical examination which was in part conducted to ascertain the etiology of his claimed tinnitus. Service treatment records indicate that the Veteran was treated in service during August 1960 for blackout spells with one prior fall and that he was treated for tonsillitis and bronchitis in October 1960 and March 1961 with Terramycin, Bicillin intramuscularly, and chlortetracycline. He was also seen for emergency room care in September 1961 for an injury to his right ear that he had sustained in a motor vehicle accident; his hearing was noted to be grossly intact at that time. The record reflects that an initial VA audio examination was attempted in October 2009, but not completed. An additional examination was then conducted in February 2010, findings from which disclosed bilateral hearing loss meeting the criteria of 38 C.F.R. § 3.385 (2012), as well as tinnitus. Also provided was a negative nexus opinion as to each claimed disorder based on the VA examiner's notations that there was shown to be normal bilateral hearing at service separation, that there was essentially symmetrical noise exposure during military service, and that there had been significant postservice noise exposure. Absent, however, from the VA examiner's rationale was any reference to the Veteran's inservice ear trauma in the motor vehicle accident in 1961, the blackout spells and fall in 1960, or any potential ototoxicity of the antibiotics administered in 1960 and 1961 for inservice infections as a basis for the service incurrence of each claimed disability, thereby rendering the opinion offered incomplete. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Remand for further medical examination and opinion as to the impact, if any, of these other inservice events is deemed necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran a VA ear, nose, and throat examination in order to ascertain more clearly the nature and etiology of his claimed bilateral hearing loss and tinnitus. The impact, if any, of inservice acoustic trauma without ear protection, right ear trauma in a motor vehicle accident, administration of various antibiotics, and blackout spells with one inservice fall should be fully addressed. His VA claims file should be made available to the VA examiner in conjunction with the examination and the report of that examination should reflect whether the claims folder was made available and reviewed. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following question, offering a complete rationale for the opinion provided: Is it at least as likely as not (50 percent or more probability) that any hearing loss or tinnitus disorder of either of the Veteran's ears originated during his military service or is otherwise attributable to service or any event therein? Whether or not inservice acoustic trauma without ear protection, right ear trauma in a motor vehicle accident, administration of various antibiotics with any possible ototoxic effects, and blackout spells with one inservice fall may have led to the onset of hearing loss or tinnitus of either ear should be fully discussed. Use by the VA examiner of the at least as likely as not language in responding is requested. 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 a nexus or service incurrence, as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. 2. Lastly, readjudicate the issues remaining on appeal, based on all of the evidence of record and all governing legal authority, and if any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time to respond, before the record is returned to the Board for further review. The Veteran need take no action until otherwise notified. 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). 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). _________________________________________________ MICHAEL MARTIN 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).