Citation Nr: 1326664 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-24 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision, by the Boise, Idaho Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability and tinnitus. The Veteran perfected a timely appeal to that decision of those two issues. The Board notes that the December 2010 rating decision also denied the Veteran's claim of entitlement to special monthly pension. Although the Veteran filed a timely notice of disagreement as to this issue, he did not complete his appeal with the filing of a substantive appeal (VA Form 9 or similar) following the issuance of an August 2011 statement of the case. Rather, he specifically excluded that issue from his appeal in the Form 9 he did file. Accordingly, that issue is not in appellate status and will be discussed no further herein. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability and tinnitus, which he contends is due to his military service. See, e.g., the Veteran's claim for VA benefits dated in May 2010. Specifically, he maintains that he developed a hearing loss disability due to noise exposure in service from working as a jet engine mechanic and from gunfire, and that he developed tinnitus either directly from the noise exposure, or as secondary to the hearing loss. The Veteran's DD Form 214 reflects that his military occupational specialty was a jet engine mechanic. Pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training as a jet engine mechanic, would be consistent with exposure to loud noise in service. Service treatment records include whispered voice examinations and audiograms dated in May 1956, July 1958, October 1958, March 1960, July 1963, March 1964, and February 1965. Notably, a July 1964 record documents "slight loss in the upper frequencies" in the Veteran's left ear based on audiogram findings. The Veteran was afforded a VA audiological examination in July 2010. In addition to the results of a current audiological examination, the VA examiner considered the Veteran's history of military noise exposure working as a jet engine mechanic, as well as noise exposure from gunfire, and the Veteran's service treatment records, to include the audiological evaluations dated May 1956, July 1958, October 1958, July 1963, March 1964, July 1964, and February 1965. After examination of the Veteran and consideration of his medical history, the VA examiner rendered assessments of bilateral hearing loss and tinnitus. She concluded in the October 2010 addendum that the Veteran's bilateral hearing loss is not caused by or a result of military noise exposure. Crucially, however, the VA examiner did not render an opinion as to whether the Veteran's current bilateral hearing loss is otherwise related to his military service. In this regard, the VA examiner did not report whether the Veteran's current hearing loss is related to his actual treatment for hearing loss in July 1964. Furthermore, although the examiner indicated that the Veteran's March 1964 audiological examination did not show "significant changes in hearing," as discussed above, the examination documents some degree of hearing loss. As such, it is unclear whether the VA examiner considered that the March 1964 audiological examination was recorded using ASA measurements, not ISO (ANSI) measurements. The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As such, the Board finds that the July 2010 VA examination with October 2010 addendum is inadequate with regard to the Veteran's bilateral hearing loss disability claim. With respect to the Veteran's tinnitus claim, the VA examiner concluded in the October 2010 addendum that the Veteran's tinnitus is not caused by or a result of military noise exposure. The examiner's rationale for her conclusion was based on the Veteran's report that the onset of his tinnitus was "several years ago," thereby indicating that the Veteran's report of the onset was long after his discharge from military service. However, a review of the record reveals that the Veteran has maintained that the onset of his tinnitus was immediately following his discharge from service. See, e.g., the Veteran's claim for VA benefits dated May 2010. The Board therefore finds that by indicating to the VA examiner that the onset of his tinnitus was "several years ago," the Veteran likely indicated that the onset of the tinnitus was immediately following his discharge from service. Accordingly, the Board finds that the VA examiner's rationale for her conclusion is inadequate. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Accordingly, the case is REMANDED for the following action: 1. Provide a VCAA notice letter to the Veteran which includes establishing service connection on a secondary basis. A copy of the letter should be forwarded to the Veteran's representative. 2. Obtain a supplemental opinion from the examiner who conducted the July 2010 VA audiological examination. If the examiner is not available, obtain an opinion from another audiologist. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the reviewer/examiner. The examiner must provide an opinion, with supporting rationale, as to the following: a. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss disability and tinnitus are related to his military service, to include hearing loss in the left ear indicated in a March 1964 audiological examination and documentation of hearing loss in the left ear in a July 1964 treatment record as well as conceded military noise exposure as a jet engine mechanic. b. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current tinnitus is related to his military service, to include conceded military noise exposure. In rendering the opinion, the examiner should consider the Veteran's report that the onset of his tinnitus was immediately following discharge from service. c. If the examiner finds that the Veteran's bilateral hearing loss disability is related to his military service, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is either (1) caused by, or (2) aggravated (i.e. permanently worsened beyond the normal progression of the disability) by his bilateral hearing loss disability. If the examiner finds that tinnitus is aggravated by the bilateral hearing loss disability, then she should quantify the degree of aggravation. The examiner should indicate in her report that the claims file was reviewed. All tests and studies deemed necessary by the examiner should be performed. A complete rationale for any opinion expressed shall be provided. The report of the examiner should be associated with the Veteran's VA claims folder. Note: The term "as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).