Citation Nr: 1324985 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-31 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1951 to December 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2011 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the claims. Jurisdiciton of the claims were subsequently transferred to the RO in Sioux Falls, South Dakota. In May 2013, the Board remanded the case to the RO in order to schedule the Veteran for a hearing. In June 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Virtual VA paperless claims file system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran is seeking service connection for bilateral hearing loss and tinnitus. Statements submitted during this appeal reflect it is his contention that his current hearing problems developed as a result of noise exposure during service. Specifically, the Veteran claims that upon entrance into service, his first military occupational specialty (MOS) was a mechanic prior to becoming a cook and that during boot camp he was located by a loud flight line and exposed to weapons noise. See Veteran's Hearing Transcript, pgs. 3-4, 6-7, June 2013; see also Veteran's Statement in Support of Claim, May 2011. The Veteran's DD-214 lists his MOS as a cook, not as a mechanic. However, the VA conceded that the Veteran was exposed to acoustic trauma during service based on his weapons training as a Marine. See Statement of the Case, November 2011. The VA also conceded that the whispered voice tests the Veteran received on his induction and separation examinations are not valid measurements for hearing levels. Id. The Veteran was afforded a VA audiological examination in June 2011 for the purpose of determining the nature and etiology of any current hearing loss and tinnitus. A review of the examination report reveals that the Veteran has a current bilateral hearing loss disability for VA purposes and bilateral tinnitus. The examiner noted that during a 2002 wellness examination, the Veteran denied having tinnitus and hearing loss. See St. Cloud VA Medical Center (VAMC), Primary Care Note, January 2002 and November 2002. The examiner also documented the Veteran's post-service occupational and recreational noise exposure. Following a review of the claims file, it was the examiner's opinion that the Veteran's current hearing loss is less likely as not related to the noise exposure he experienced while in the Marines. In providing this opinion, the examiner stated that the Veteran's MOS of cook did not have a likelihood of high levels of noise exposure. The examiner did not consider that the VA had already conceded that the Veteran was exposed to acoustic trauma in-service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (an adequate medical opinion must consider all relevant records in the VA claims file so that the opinion is fully informed). A December 2011 addendum to the VA audiological examination cited to an Institute of Medicine study that found a delay of many years in the onset of noise-induced hearing loss is extremely unlikely. The examiner opined that as the Veteran's hearing was normal upon separation, this proves there was no evidence of hearing damage due to military noise exposure. The examiner stated that any worsening of the Veteran's hearing from the time of separation from service was due to post-service noise exposure. This addendum opinion fails to take into account the VA's concession that the whispered voice hearing tests used upon the Veteran's entrance and separation examinations are not a valid measure of his hearing levels. Additionally, the addendum opinion failed to consider that the absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, a remand is required for further evidentiary development. The RO should obtain the Veteran's complete service personnel records as they are relevant as to whether the Veteran served as mechanic during service. See 38 C.F.R. § 3.159(c). Further, a new VA addendum medical opinion is needed that considers the Veteran's in-service exposure to acoustic trauma, the invalidity of his whispered voice hearing tests at induction and separation, the Veteran's lay statements regarding the onset of his hearing loss and tinnitus in-service and the continuity of those disabilities to the present, the lay statements from friends of the Veteran that confirm his hearing loss after service, and the fact that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See 38 C.F.R. § 3.159(c)(4); see also Hensley, 5 Vet. App. at 159; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once the VA undertakes to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for bilateral hearing loss and tinnitus since service. After securing the necessary release(s), obtain these records and all updated pertinent medical records from the St. Cloud VAMC since November 2002. 2. Associate the Veteran's service personnel file with the claims folder. 3. After completion of the above, send the Veteran's claims file to an audiologist (or other appropriate clinician) for the purpose of obtaining an opinion regarding the etiology of his current bilateral hearing loss and tinnitus. The claims file, including a copy of this REMAND, must be made available to the reviewing clinician. The clinician is requested to consider the history of the Veteran's symptoms as observed by him and others since service, review the record, and offer the following opinions: Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed hearing loss is etiologically related to the Veteran's active military service? Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed tinnitus is etiologically related to the Veteran's active military service? If the clinican finds that the Veteran's current hearing loss is at least as likely as not related to his active military service, is the Veteran's tinnitus at least as likely as not (i.e. probability of 50 percent or greater) etiologically related to the Veteran's hearing loss? The clinician is requested to provide a thorough rationale for all opinions provided and should reflect consideration of both lay and medical evidence. In providing these opinions, the examiner should address the significance of the Veteran's MOS of mechanic (if confirmed by his personnel records), VA's concessions that the Veteran was exposed to acoustic trauma in-service and that whispered voice hearing tests are not valid measures of hearing levels, the Veteran's lay statements that he first experienced hearing loss and tinnitus during boot camp, the Veteran's friends' statements that corroborate the Veteran's accounts of in-service hearing loss, the January 2002 and November 2002 St. Cloud VAMC reports of no hearing loss and no tinnitus, and the Veteran's post-service exposure to occupational and recreational noise. The clinician is reminded that lack of a diagnosis of hearing loss in the Veteran's service treatment records is not fatal to this claim. Note: if the clinician concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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). _________________________________________________ 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).