Citation Nr: 1324282 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-35 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection claim for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The issue of service connection for tinnitus was raised by the Veteran during his 2013 Board hearing, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. The Veteran served on active duty from May 1969 to January 1971. This matter come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); which denied, in pertinent part, service connection for an acquired psychiatric disorder (claimed as depression), and service connection for left and right ear hearing loss. In a rating decision dated in October, 2012, the RO granted service connection for anxiety disorder, not otherwise specified (claimed as depression), with an evaluation of 30 percent effective July 16, 2008. The benefit sought, namely, service connection for a psychiatric disorder claimed as depression, having been granted, that issue is no longer on appeal. In May 2013, the Veteran testified regarding his appeal for service connection for bilateral hearing loss before the undersigned Veterans Law Judge at a Travel Board hearing in Montgomery, Alabama. A transcript of that hearing is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for left and right ear hearing loss, which he says is related to excessive noise exposure during his Vietnam war service on the U.S.S. SHANGRI-LA CVS-38. During his 2013 Board hearing he testified that he worked in or around the ship's engine room; that he had hearing problems (including tinnitus) during service; and that audiology tests done since the 1970s by his former civilian employer showed bilateral hearing loss. A 1969 pre-induction examination found hearing thresholds of 0 decibels at all frequencies, but testing during the December 1970 separation examination found as follows: Hertz 500 1000 2000 3000 4000 Right ear 10 5 0 0 5 Left ear 35 50 40 35 35 The defects portion of this report contains the remarks "hearing loss lt [left] ear/ncd [not considered disqualifying]." The evidence of record also includes the report of an audiogram done by the Veteran's post-service civilian employer in July 1975, which found hearing thresholds of 10, 0, 0, 30, and 25 for the left ear, and 10, 5, 5, 10, 5 for the right ear from 500 to 4000 Hertz, respectively. Testing by a private provider in July 2008, and on VA examination in August 2008, found hearing within normal limits, bilaterally, except at 3000 to 4000 Hertz. In correspondence dated in December 2008 the Veteran's sibling wrote that she had had to speak loudly to the Veteran on his return from service According to the August 2008 VA examiner, the Veteran's hearing loss noted at service separation was temporary; due to an earlier ear infection/congestion. However, the examiner made no mention of the post-service medical or lay evidence of hearing loss, which indicates that the threshold shift documented during the Veteran's separation examination may not have been temporary. See, e.g., Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993) (providing that service connection for hearing loss can be established if medical evidence shows that it is actually due to incidents during service, particularly where the evidence demonstrates a threshold shift during service). Remand for a new examination and opinion is therefore warranted. On remand a request should be made for any extant, post-service, audiology records dated in the 1970s. See Board Hearing Transcript, pp. 9-10. Accordingly, the case is REMANDED for the following action: 1. Request, after receipt from the Veteran of necessary authorization(s), the reports of all audiology testing of the Veteran dating from January, 1971, from Champion Paper Mill, presently doing business as International Paper Mill. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorization(s) from the Veteran. The Veteran and his representative must be notified of any unsuccessful quest for identified records and provided with an opportunity to submit the records. 2. After associating all outstanding records with the claims file, schedule the Veteran for a new VA audiology examination. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests should be done, and all findings reported in detail. Following completion of the examination and a review of the claims file, to include service and post-service medical records, the examiner is requested to opine as to whether it is at least as likely as not that the Veteran's left ear hearing loss and his right ear hearing loss began during active duty service or is related to some incident or event of active duty service, including the Veteran's otitis media during service, and/or the Veteran's work near the engine room of an aircraft carrier in operations off Vietnam during the Vietnam war. A complete rationale for all opinions must be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 3. After completion of all of the above and any other development deemed necessary, re-adjudicate the Veteran's claim. If any benefit remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE 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).