Citation Nr: 1326859 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-27 255 ) 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 The Veteran is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1973. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In April 2010, the Veteran submitted claims of entitlement to service connection for bilateral hearing loss and tinnitus. Pursuant to these claims, the Veteran was provided a VA audiological examination in July 2010. Further, the RO obtained a second opinion from a VA examiner in September 2011 based on a review of the Veteran's claims file. Both the July 2010 and September 2011 VA examiners based the rendered opinions, in at least in part, on the observation that the Veteran's bilateral hearing acuity was normal upon his enlistment into and separation from active service. Generally, even if hearing loss is not shown in service or at separation from service, service connection can still be established if medical evidence shows that it is actually due to incidents during service. If competent medical evidence of record demonstrates (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing that produced findings meeting the requirements of 38 C.F.R. § 3.385, VA must then determine, if possible, whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. 38 C.F.R. § 3.385 (2012); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran underwent pre-enlistment audiological testing in December 1968 and upon separation in January 1973. Comparing the results from these two tests demonstrated a decrease in the Veteran's hearing acuity. Specifically, with respect to his right ear, the Veteran's hearing acuity shifted upward 15 decibels at 500 and 1000 Hertz, and 10 decibels at 2000 and 3000 Hertz. With respect to his left ear, the Veteran's hearing acuity shifted upward 10 decibels at 500 and 1000 Hertz and 15 decibels at 2000, 3000, and 4000 Hertz. Neither the July 2010 nor the September 2011 VA examiner discussed the bilateral upward shift in the Veteran's hearing acuity. Instead, the examiners limited the rendered opinions to the observation that the Veteran's hearing was "normal" upon service separation. As such, the Board finds that the July 2010 and September 2011 opinions are inadequate for purposes of adjudicating the Veteran's claim of entitlement to service connection for bilateral hearing loss. Id.; see Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). With respect to the Veteran's tinnitus, the July 2010 VA examiner rendered a negative etiological opinion based on the observation that the Veteran did not complain of tinnitus during several inservice medical consultations. Despite this, during the examination, the Veteran reported that he experienced tinnitus during his active duty service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). The examiner did not discuss the Veteran's lay observation of inservice tinnitus and, thus, the Board finds that the July 2010 VA examination is not adequate for purposes of adjudicating the Veteran's service connection claim for tinnitus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). In the September 2011 opinion (with October 2011 addendum), the second VA examiner found that the record did not include evidence of inservice acoustic damage. However, as discussed above, by comparing the Veteran's pre-enlistment and separation audiological test results, his puretone thresholds shifted upward, bilaterally, at several frequencies, which is evidence of a decrease in hearing acuity. The examiner did not consider this as evidence of inservice acoustic damage. As such, the Board finds that the September 2011 opinion is not adequate for purposes of adjudicating the Veteran's claim of entitlement to service connection for tinnitus, even when considering the October 2011 addendum. Reonal, 5 Vet. App. at 460-61. Based on the above, the Board finds that a remand is required in order to obtain a supplemental opinion or to provide the Veteran a new VA audiological examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. The RO must request that the September 2011 VA examiner provide a supplemental opinion. The Veteran's claim file must be made available to and reviewed by the examiner. NOTE: VA has already conceded the Veteran's inservice exposure to acoustic trauma. The Veteran's military occupational specialty, the objective medical findings in the service treatment records, the previous VA audiological evaluations currently of record, the Veteran's lay statements of inservice symptoms, and any other pertinent clinical findings of record, must be taken into account. The examiner must specifically address the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hearing loss and/or tinnitus was/were incurred in or due to his military service, to include noise exposure? In so doing, the examiner must specifically address and discuss the upward shifts in the Veteran's bilateral puretone thresholds, as demonstrated by a comparison of the December 1968 and January 1973 audiological test results. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions, it must be so stated, and the examiner must provide an explanation as to why any opinion could not be rendered. 2. If the September 2011 VA examiner is not available, the Veteran must be provided another VA audiological examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Specifically, the results of the audiological evaluation, for each ear, must include the puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, the puretone threshold average, and the results of the word recognition test, in percentages, using the Maryland CNC test. NOTE: VA has already conceded the Veteran's inservice acoustic trauma. The Veteran's military occupational specialty, the objective medical findings in the service treatment records, the previous VA audiological evaluations currently of record, the Veteran's lay statements of inservice symptoms, and any other pertinent clinical findings of record, must be taken into account. The examiner must specifically address the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hearing loss and/or tinnitus was/were incurred in or due to his military service, to include noise exposure? In so doing, the examiner must specifically address and discuss the upward shifts in the Veteran's bilateral ear puretone thresholds, as demonstrated by a comparison of the December 1968 and January 1973 audiological test results. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion, it must be so stated, and the examiner must provide an explanation as to why any opinion could not be rendered. 3. If the Veteran is scheduled for a new VA audiological, the RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO must review the resulting examination to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, to include consideration of all the relevant evidence of record. If the claim(s) remain(s) denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ U. R. POWELL 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).