Citation Nr: 1326276	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  11-12 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


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

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty in the Navy from March 1966 to March 1968.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for bilateral hearing loss and tinnitus and declined to reopen a previously denied claim for service connection for chronic obstructive pulmonary disease (COPD).  The Veteran filed a timely notice of disagreement (NOD) with respect to the COPD issue, but did not perfect the appeal.  See November 2012 Informal Hearing Presentation at 1.  Thus, that matter is no longer in appellate status.

This appeal is remanded to the RO via the Appeals Management Center in Washington, DC.  VA will notify you if further action is required on your part.  


REMAND

The Veteran asserts that he was exposed to excessive noise during service that included heavy equipment, mortars, artillery, and small arms fire without the use of any hearing protection while serving as a combat engineer in Vietnam.  He contends that he suffered tinnitus and hearing loss during his active duty service, and that this condition has continued since that time.  See September 2009 and August 2010 VA Form 21-4138; June 2010 Statement; May 2011 VA Form 9.  The DD 214 shows that the Veteran's military occupational specialty (MOS) was that of combat engineer.  He also earned the Rifle Badge.  Considering the Veteran's contentions in conjunction with his service duties, exposure to acoustic trauma during service is conceded.  

While acoustic trauma during service is conceded, the evidence does not support the Veteran's claim that hearing loss and/or tinnitus have continued since service.  There were no pertinent findings in the service treatment records and in the Report of Medial History at service discharge, he denied having or having had any ear trouble or hearing loss.  The Veteran filed several claims for compensation prior to the current claim and did not mention hearing loss or tinnitus.  While he was aware of the compensation program, he did not mention hearing loss and tinnitus prior to the 2009 claim approximately 40 years following service discharge.  Moreover, on examinations of the ears at the Jewish Hospital in 1995 and by VA in 1998, the ears were reportedly within normal limits, with no pertinent complaints or findings.  

Audiological testing upon service entrance in March 1966 revealed that pure tone thresholds (converted), in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
10
0
LEFT
5
5
5
10
0

The Veteran received a normal clinical evaluation of his ears during the January 1968 separation examination.  Audiological testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
--
0
LEFT
0
0
0
--
0

The Veteran submitted to a February 2010 VA audiological examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
50
60
55
LEFT
20
30
55
45
50

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.  The examiner noted that the Veteran reported an onset of bilateral hearing loss and tinnitus 20 years earlier.  She diagnosed bilateral sensorineural hearing loss and tinnitus.  She opined that that the Veteran's current hearing loss and tinnitus were not caused by or a result of military service.  The examiner explained that STRs indicated normal hearing at pre-induction, entrance, and separation.  

The June 2008 VA examiner based her negative nexus opinion on the fact that the Veteran exhibited normal hearing during his active service.  However, VA regulation 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley  v. Brown, 5 Vet. App. 155, 159 (1993). 

In view of the foregoing, on remand another opinion is required to determine whether it is at least as likely as not that the Veteran's bilateral sensorineural hearing loss and/or tinnitus are related to conceded noise exposure during the Veteran's active duty service.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA audiological examination.  The claims file, to include a copy of this remand, must be made available to the examiner for review in connection with the examination.  An audiogram should be completed, and the results of such testing should be included in the examination report. 

For any hearing loss and/or tinnitus present, the examiner should indicate whether it is at least as likely as not, i.e., 50 percent probability or greater that it had its clinical onset during the Veteran's period of active service, or a sensorineural hearing loss was exhibited within the first post service year, or pertinent disability is otherwise related to service.  In doing so, the audiologist must consider all of the evidence of record, to include the June 2010 audiogram and the presumed in-service noise exposure.  If the examiner opines that the bilateral hearing loss is not related to service, the opinion must be supported by a rationale other than that the Veteran's hearing was normal on separation from service.  See Hensley  v. Brown, 5 Vet. App. 155 (1993).  As discussed herein, any claim of continuity of symptoms since service is not credible.  

2.	Then, readjudicate the issues on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant unless he is notified.

The appellant 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).


______________________________________________
THOMAS J. DANNAHER
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).



Department of Veterans Affairs