Citation Nr: 1323684 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-18 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall INTRODUCTION The Veteran served on active duty from April 1970 to October 1971 and from January 1991 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that an additional record, consisting of a July 2013 informal hearing presentation, has been added to the present appeal. 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 After the April 2008 VA examination, additional private audiology reports from August 1990 to July 2003 were received and may have a bearing on the outcome of the current claims. A remand is also necessary in order to obtain a supplemental VA opinion based on these additional records, as well as updated VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all VA medical records available from November 2007. All records which are not duplicates of those already in the claims file should be associated with the claims file. THE AMC/RO SHOULD DOCUMENT WHETHER OR NOT THESE DOCUMENTS WERE AVAILABLE. 2. AFTER THE ABOVE HAS BEEN COMPLETED, arrange for the VA EXAMINER WHO PERFORMED THE APRIL 2008 VA EXAMINATION, OR A SIMILARLY QUALIFIED SPECIALIST, to review the claims file, including the additional private audiology reports. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file, including the following: (a). The Veteran served on active duty from April 1970 to October 1971, with service in the Republic of Vietnam from September 1970 to October 1971, and from January 1991 to June 1991. (b). The Veteran's lay statements of a continuity of hearing loss and tinnitus symptoms since his periods of active service are competent evidence. (c). The Veteran's service information supports his reports of exposure to excessive noise during both periods of active service. (d). Audiometric testing in the April 1970 service entrance examination revealed that the hearing threshold levels in decibels in the right ear were 15, 10, 20 and 30 at 500, 1000, 2000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 25, 15, 15 and 40 at 500, 1000, 2000 and 4000 Hertz respectively. (e). A whisper voice test at the Veteran's October 1971 separation examination revealed the Veteran's hearing was at 15/15 in both ears. (f). Audiometric testing in a September 1975 periodic examination during the Veteran's U.S. Army Reserves service revealed that the hearing threshold levels in decibels in the right ear were 0, 10, 25 and 20 at 500, 1000, 2000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 0, 20, 30 and 35 at 500, 1000, 2000 and 4000 Hertz respectively. (g). Audiometric testing in a May 1979 periodic examination during the Veteran's U.S. Army Reserves service revealed that the hearing threshold levels in decibels in the right ear were 20, 20, 25 and 25 at 1000, 2000, 3000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 20, 20, 20 and 25 at 1000, 2000, 3000 and 4000 Hertz respectively. (h). Audiometric testing in a March 1984 periodic examination during the Veteran's U.S. Army Reserves service revealed that the hearing threshold levels in decibels in the right ear were 25, 10, 25 and 35 at 500, 1000, 2000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 25, 15, 25 and 35 at 500, 1000, 2000 and 4000 Hertz respectively. (i). Audiometric testing in a November 1987 periodic examination during the Veteran's U.S. Army Reserves service revealed that the hearing threshold levels in decibels in the right ear were 20, 10, 25 and 30 at 500, 1000, 2000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 30, 15, 30 and 40 at 500, 1000, 2000 and 4000 Hertz respectively. (j). An August 1990 private audiology report indicates that from 2000 to 4000 Hertz, the hearing threshold levels in decibels ranged between 30 to 45 in the right and left ears. (k). Approximately four (4) months prior to the Veteran's entrance into his second period of active service, an August 1991 private audiology report indicates that from 2000 to 4000 Hertz, the hearing threshold levels in decibels ranged between 25 to 55 in the right and left ears. (l). No service entrance examination was provided upon the Veteran's entrance into his second period of active service in January 1991. (m). Audiometric testing in the June 1991 service separation examination revealed that the hearing threshold levels in decibels in the right ear were 15, 20, 30, 40 and 45 at 500, 1000, 2000, 3000 and 4000 Hertz respectively. At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 15, 20, 35, 50 and 55 at 500, 1000, 2000, 3000 and 4000 Hertz respectively. The June 1991 audiology report noted the Veteran had been routinely exposed to hazardous noise. (n). A September 1992 private audiology report indicates that from 2000 to 4000 Hertz, the hearing threshold levels in decibels ranged between 30 to 60 in the right and left ears. AFTER A REVIEW AND CONSIDERATION OF THE ABOVE-NOTED RELEVANT INFORMATION, the examiner is asked to offer an opinion addressing the following questions: (a). Did the Veteran have any hearing loss and/or tinnitus UPON ENTRANCE INTO HIS FIRST PERIOD of active service from April 1970 to October 1971? If so, please identify with specificity any evidence that supports a finding that it was OBVIOUS OR MANIFEST (clear and unmistakable) that a hearing loss and or tinnitus disability preexisted service. (b). IF the examiner finds that the Veteran had a preexisting hearing loss and/or tinnitus disability upon entrance into his first period of active service from April 1970 to October 1971, s/he is asked to furnish an opinion as to whether a hearing loss or tinnitus disability INCREASED IN SEVERITY DURING HIS FIRST PERIOD OF ACTIVE SERVICE, and if so, whether there is OBVIOUS OR MANIFEST (clear and unmistakable) evidence that such increase was due to the natural progression of the disorder (i.e., not aggravated). (c). IF the examiner finds that the Veteran did not have a preexisting hearing loss and/or tinnitus disability upon entrance into his first period of active service from April 1970 to October 1971, s/he is asked to furnish an opinion as to whether a hearing loss or tinnitus disability was INCURRED DURING HIS FIRST PERIOD OF ACTIVE SERVICE? (NOTE: The Veteran's lay statements of a continuity of hearing loss and tinnitus symptoms since service are competent evidence and his service information supports his reports of exposure to excessive noise during both periods of active service). (d). Did the Veteran have any hearing loss and/or tinnitus UPON ENTRANCE INTO HIS SECOND PERIOD of active service from January 1991 to June 1991? If so, please identify with specificity any evidence that supports a finding that it was OBVIOUS OR MANIFEST (clear and unmistakable) that a hearing loss and or tinnitus disability preexisted service. (e). IF the examiner finds that the Veteran had a preexisting hearing loss and/or tinnitus disability upon entrance into his second period of active service from January 1991 to June 1991, s/he is asked to furnish an opinion as to whether a hearing loss or tinnitus disability INCREASED IN SEVERITY DURING HIS SECOND PERIOD OF ACTIVE SERVICE, and if so, whether there is OBVIOUS OR MANIFEST (clear and unmistakable) evidence that such increase was due to the natural progression of the disorder (i.e., not aggravated). (f). IF the examiner finds that the Veteran did not have a preexisting hearing loss and/or tinnitus disability upon entrance into his second period of active service from January 1991 to June 1991, s/he is asked to furnish an opinion as to whether a hearing loss or tinnitus disability was INCURRED DURING HIS SECOND PERIOD OF ACTIVE SERVICE? (AGAIN NOTE: The Veteran's lay statements of a continuity of hearing loss and tinnitus symptoms since service are competent evidence and his service information supports his reports of exposure to excessive noise during both periods of active service). PLEASE PROVIDE A FULL EXPLANATION OF THE REASONS FOR EACH OPINION FURNISHED. PLEASE NOTE that the additional private audiology reports include additional information not previously considered, regarding the Veteran's hearing both prior to and after his second period of active service. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to ALL the questions posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. Readjudicate the hearing loss and tinnitus claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant 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). _________________________________________________ Vito A. Clementi 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).