Citation Nr: 1325858 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-16 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter is on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, when the Veteran underwent a VA examination in November 2009, he stated that his military duties as an artilleryman included repair of missiles and large-caliber artillery. The noise exposure was so significant from these activities that he once recalled one incident where his left ear was bleeding from the repeated acoustic trauma. Audiometric testing revealed mild to severe sensorineural hearing loss bilaterally, and his observed tonal thresholds were sufficient to establish impaired hearing for VA purposes. 38 C.F.R. § 3.385 (2012). After the examination was complete, the examiner concluded that it was less likely than not that the Veteran's hearing loss was related to active duty service. In providing this opinion, the examiner noted that the Veteran's hearing was normal at the time he entered and left active duty. There was also no documentation in the service treatment records of bleeding from the left ear. Some clarification is required from this examiner for two reasons. First, indications of "abnormal" hearing loss (or hearing loss for purposes of 38 C.F.R. § 3.385) in service is not required. Rather, service connection is for application where the evidence indicates a measurable worsening in the Veteran's hearing. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In this case, the Veteran's induction and separation physical examinations indicate that his hearing actually improved over the course of three years. This would seem inconsistent with the nature of his service (and counterintuitive), and suggests that the separation audiogram values are possibly inaccurate. Next, while the VA examiner has noted that there are no records reflecting treatment for ear bleeding, this does not render the Veteran's statement noncredible, per se. While the absence of treatment records may be significant in some cases, it is reasonable to conclude that the disorder was not so significant that it warranted treatment. Cf. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Veteran's lay testimony is competent to establish the presence of observable symptomatology (such as blood from the ear) and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore an addendum to the prior opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). As for the Veteran's tinnitus claim, this issue is potentially related to the development related to his hearing loss claim, and should not be considered until the necessary development of the hearing loss claim is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. If the Veteran has undergone any private treatment related to the disorders on appeal, and the records of such treatment have not been associated with the claims file, such records should also be acquired after obtaining his authorization. If the Veteran has received treatment from any VA Medical Center, the records of such treatment should also be incorporated into the claims file. 2. Forward the claims file to the VA examiner who examined the Veteran in November 2009. The examiner is asked to express an addendum opinion as to whether it is whether it is at least as likely as not (i.e., a 50 percent possibility or greater) that the Veteran's sensorineural hearing loss and tinnitus is related to acoustic noise exposure in service. In providing this opinion, the examiner should address the nature of any shift in tonal thresholds while in service and the reliability of his in-service testing. For purposes of this opinion, the examiner should also presume that: (1) The Veteran was exposed to acoustic trauma in service; and (2) His statements with respect to episodes of bleeding from the ear are credible, despite no record of treatment. This opinion must be accompanied by adequate reasons and bases. Such reasons and bases may include, but are not limited to, specifically cited medical literature, evidence in the record, and prior VA examination reports. The examiner should consider the Veteran's lay statements regarding the incurrence of these disorders. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner who performed the examination in November 2009 is no longer available, the claims file should be forwarded to a new examiner. A new examination is not necessary unless the new examiner determines that one is required. If an examination is deemed necessary, all indicated testing should be accomplished. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case; provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).