Citation Nr: 1326090 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-05 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The RO issued an initial rating decision for the Veteran's service connection claim for bilateral hearing loss and tinnitus in September 2009. During the appeal period for the September 2009 rating decision, the Veteran submitted evidence from a private audiologist in April 2010 that included audiometric testing results and an opinion linking the Veteran's current hearing loss and tinnitus to noise exposure in service. The RO re-adjudicated the claim and issued a new rating decision in April 2010. The Veteran filed a notice of disagreement in June 2010, and a statement of the case was issued in January 2011. The Veteran appealed to the Board in February 2011. The evidence submitted during the one year appeal period for the September 2009 rating decision was new and material, and must be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). As such, the September 2009 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus is at issue before the Board. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2012). The Veteran contends that his current hearing loss and tinnitus are a result of exposure to noise while working as an aircraft mechanic on the flight line during military service. A VA examination and opinion were provided for the Veteran's claim in June 2009, but the inadequacies evident in the examination and opinion require a remand. The Veteran's service treatment records reflect an enlistment audiometric examination in a report of examination from March 20, 1962, an audiometric examination printed graph of results from March 27, 1962, a June 4, 1965 audiometric examination, and a January 20, 1966 separation audiometric examination. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, and to determine whether significant threshold shifts in hearing were incurred between enlistment and separation, service department audiometric test results through October 31, 1967 under the ASA standards must be converted to ISO-ANSI standards. In this case, the VA examiner did not indicate whether the audiometric test results were converted, and also failed to identify and discuss any threshold shifts during service after conversion. The examination report is inadequate in this respect. In addition to the failure to convert audiometric results to analyze threshold shifts, the VA examiner also failed to analyze indications in the Veteran's service treatment records that the Veteran had hearing loss in light of the actual audiometric test results in the service treatment records. The VA examiner failed to discuss the March 27, 1962 change in physical profile in the service treatment records, including the note of a "correction of erroneous profile (hearing)" where the physical profile was changed from 1 to 2 under column H. The VA examiner did not discuss the addition of "71. High frequency hearing loss H2" to the Veteran's summary of defects and diagnoses on a report of medical examination updated March 27, 1962. The VA examiner did not analyze the January 5, 1966 physical profile serial report where column H was revised from 2 to 1 with no defects listed, and the remarks indicate "re-profiled H-2 to H-1 on initial class III flying examination on 4 June 65." The VA examiner did not discuss whether the Veteran had hearing loss at enlistment in light of the audiometric test results available at the time and notations on his corrected report of examination in March 1962 at enlistment, nor did the VA examiner indicate if any hearing loss increased during the Veteran's service and was thus aggravated by service in light of in-service audiometric test results, or whether any increase in hearing loss was due to the natural progression of the Veteran's disease. The VA examiner did not include a detailed history of the Veteran's in-service and post-service noise exposure in the opinion, nor did the examiner discuss the impact of the Veteran's noise exposure and its relationship to the Veteran's current bilateral hearing loss and tinnitus. As for the evidence and opinion from the private doctor of audiology dated March 26, 2010, further clarification is required. The doctor indicated that "test results were obtained using standard audiometric procedures," but failed to indicate whether the Maryland CNC test was used for speech discrimination, and did not include a concise summary of each decibel result for each Hertz level other than the handwritten graph, and did not provide a specific diagnosis for each of the Veteran's ears. Finally, neither examiner provided an adequate explanation/medical basis for their opinions. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran identify all private and VA medical treatment providers who have treated him from June 2009 to present for his hearing loss and tinnitus, and obtain an authorization to request medical treatment records from each provider identified by the Veteran. 2. The RO must obtain medical treatment records from each provider identified by the Veteran in Directive #1, and associate all of the records with the claims file. 3. After completing the above development, ensure that the Veteran is scheduled for a VA examination for his hearing loss and tinnitus. The claims file must be provided to the examiner, and the examiner must review the claims file in conjunction with the audiometric examination. 4. The examiner must interview the Veteran, and record in detail the history of his hearing loss and tinnitus. The examiner must obtain a detailed history concerning the onset of symptoms, frequency of occurrence, and duration of hearing loss and tinnitus at all time periods beginning from the alleged onset of both conditions to the present. 5. In order to facilitate data comparison, the examiner must convert the service department audiometric test results included in the record that were generated through October 31, 1967 from American Standards Association (ASA) measurements to the International Standards Organization (ISO)-American National Standards Institute (ANSI) measurements, and include the conversions in the examination report. If conversion is not necessary for a set of service department audiometric test results, the examiner must indicate why the conversion is unnecessary. 6. After converting the service audiometric test results according to Directive #5, the examiner must identify and list all Hertz levels for each ear where there were pure tone threshold changes between the enlistment examinations in March 1962, the audiometric examination printed graph of results from March 27, 1962, the June 1965 audiometric examination, and the separation examination in January 1966. The examiner must discuss all threshold changes noted for each Hertz level, and discuss, in detail, whether or not the pure tone threshold changes at each Hertz level for each ear indicate a significant threshold shift in the Veteran's hearing. If the pure tone threshold change at a Hertz level indicates a significant threshold shift in the Veteran's hearing, the examiner must provide a rationale discussing why the shift is significant. If the pure tone threshold change at a Hertz level does not indicate a significant threshold shift in the Veteran's hearing, the examiner must provide a rationale discussing why the shift is not significant. 7. The examiner must state whether the Veteran had hearing loss at enlistment, and state whether the Veteran had hearing loss at any point during service after converting and comparing the audiometric test results. 8. If the examiner finds that the Veteran had hearing loss at enlistment in light of audiometric test results available at the time and notations in his service treatment records, the examiner must provide: a. An opinion on whether the Veteran's hearing loss increased during service in light of audiometric test results from enlistment to separation in the service treatment records; b. If the examiner finds that Veteran's hearing loss increased during service, the examiner must provide an opinion on whether the increase in hearing loss was due to the natural progression of the Veteran's disease. 9. After completing the Directives above, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current hearing loss and tinnitus are related to any threshold shifts shown during service. The examiner must provide a detailed rationale explaining the opinion. 10. The examiner must address the Veteran's exposure to aircraft flight line noises in service, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current hearing loss and tinnitus were incurred as a result of exposure to aircraft flight line noise in service. The examiner must provide a detailed rationale explaining the opinion. 11. If the examiner determines that the Veteran's current hearing loss and tinnitus are not related to military service, the examiner must discuss the etiology of the Veteran's hearing loss and tinnitus in light of post-separation noise exposure and the Veteran's lay statements regarding continuity of hearing loss and tinnitus symptoms identified in the detailed Veteran's history collected according to Directive #4. 12. The examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current tinnitus is caused by his hearing loss. The examiner must provide a detailed rationale explaining the opinion. 13. The examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current tinnitus is related to his hearing loss. The examiner must provide a detailed rationale explaining the opinion. 14. The RO must inform the Veteran that he may contact the private doctor of audiology to clarify the opinion dated March 26, 2010. The Veteran may contact the private doctor of audiology and obtain clarification on whether the Maryland CNC test was used for speech discrimination results, obtain a listing of each numerical decibel result for each Hertz level for the March 26, 2010 audiometric test, obtain a specific diagnosis for each ear, and obtain a rationale for the nexus opinion. 15. Then, re-adjudicate the issue of entitlement to service connection for hearing loss and tinnitus on the merits. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Then return the case to the Board, if in order. 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). _________________________________________________ MARJORIE A. AUER 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).