Citation Nr: 1325028 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 11-14 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1971. This case comes before the Board of Veterans Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which denied both the claims for bilateral hearing loss and tinnitus. 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 contends that his bilateral hearing loss and tinnitus are etiologically related to his active military service and that service connection is therefore warranted in this case. However, the Board has determined that before adjudication of the Veteran's claims for service connection for bilateral hearing loss and tinnitus, further development is needed. See 38 C.F.R. § 19.9 (2012). The Board finds that the Veteran should be provided with a new VA examination to determine the nature and etiology of his hearing loss and tinnitus disabilities. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The RO had previously determined that an audiological examination was warranted with respect to the Veteran's claims for service connection for bilateral hearing loss and tinnitus. Accordingly, in September 2009, the Veteran was afforded a VA examination in which he was diagnosed with a hearing loss disability as recognized by VA for disability purposes, specifically mild sensorineural hearing loss in both of his ears. See 38 C.F.R. § 3.385 (2012). The Veteran was also diagnosed with tinnitus on the basis of his account of ringing in the ears. However, the September 2009 VA examiner concluded that it was less likely than not that the Veteran's hearing loss and tinnitus began in service. In making that determination, the examiner indicated having reviewed the Veteran's C-file which showed hearing thresholds which were within normal limits for each ear at service entrance in 1968 and separation in 1971. However, the Veteran stated to the examiner that his hearing loss had been present since the 1970's, that he was exposed to helicopters and explosions, and that hearing protection was provided some of the time but not for one complete year. Despite the presence of these statements, the VA examiner failed to take them into consideration when rendering his opinion. The examiner also failed to consider the Veteran's statements regarding the onset and continuity of his tinnitus. The Veteran stated to the examiner that his tinnitus began in the 1970's, is heard in both his ears one time every two weeks for 2 minutes in duration, and has a "ringing" pitch. Rather than reconciling the Veteran's lay assertions, the examining audiologist opined that because testing during entrance in 1968 and separation in 1971 showed normal hearing bilaterally, the Veteran's hearing loss disability or tinnitus was not due to military service. The September 2009 examiner's opinion is consistent with the Veteran's service treatment records, which make no mention of any complaints of, or findings related to hearing loss or tinnitus. However, the absence of a documented hearing disability in service is not always fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). To the contrary, when the regulatory requirements for a disability are not met at separation, service connection may still be established through probative evidence that the current disability is related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also 38 C.F.R. §3.303(d). As previously noted, the Veteran stated that he was exposed to very loud noise as a result of having worked as an aircraft armament repairman on helicopters with limited access to hearing protection. See September 2009 VA examination; see also Veteran's Substantive Appeal (VA Form 9). The Veteran is competent to report his noise exposure during service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Moreover, the Board considers the Veteran's account in this regard to be credible as it is consistent with his military occupation, as documented in his DD214 separation form. In addition, the RO, in its September 2009 rating decision, conceded that acoustic trauma occurred. The Board points out that, just as the Veteran, while a layperson, is competent to report a history of in-service acoustic trauma, he is also competent to report on the onset of observable symptoms or injury residuals, such as ringing in the ears. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Veteran is competent to report having continuous symptoms since service. See Charles v. Principi, 16 Vet. App. 370 (2002). In light of the foregoing, the Board finds that the September 2009 VA examination to be inadequate because the VA examiner failed to address the Veteran's statements of in-service noise exposure and the continuance of hearing loss and tinnitus symptoms when providing his opinion. The United States Court of Appeals for Veterans Claims (Court) has held that a VA examination is inadequate where it ignores the claimant's statement of in-service incurrence. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Therefore a new examination is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file, as well as any records contained in Virtual VA, should be made available to and be reviewed by the examiner in conjunction with the examination. All required tests, to include audiological and controlled speech discrimination (Maryland CNC) testing, should be performed, and the examiner should provide an opinion on the following questions: (A) Is it at least as likely as not (50 percent or greater) that the Veteran's hearing loss disability is related to his active military service, to include in-service acoustic trauma related to his reported service as an aircraft armament repairman? (B) Is it at least as likely as not (50 percent or greater) that the Veteran's tinnitus is related to his active military service, to include in-service acoustic trauma related to his reported service as an aircraft armament repairman? In rendering this opinion, the VA examiner should accept as true the Veteran's account of in-service acoustic trauma and a lack of such significant noise exposure after leaving service. The VA examiner should also accept as true the Veteran's account of his recurrent hearing loss and tinnitus symptoms, which have persisted since his active service and are capable of lay observation (e.g., difficulty identifying spoken words and ringing in the ears). A report of the examination should be prepared and associated with the Veteran's claims file. A complete rationale must be provided for each opinion rendered. If the examiner determines that he/she cannot provide an opinion on the issues at hand without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. 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). These claims 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). _________________________________________________ MILO H. HAWLEY 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).