Citation Nr: 1326861 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-12 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia on behalf of the RO in Winston-Salem, North Carolina. In September 2011, prior to the certification of the appeal to the Board, private attorney J.D. indicated that she wished to withdraw her services as the Veteran's representative in this matter. In a December 2011 correspondence, the Veteran also indicated that he had revoked J.D. as his representative. 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 The Veteran claims that his current bilateral hearing loss and tinnitus are due to noise exposure during his service in the United States Air Force. He claims that he was exposed to noise during service while working as an air policeman on or near the flight lines. He also claims that his barracks was located near the end of the flight line, and that he was exposed to noise from airplanes and jets on a daily basis. In July 2009, the RO afforded the Veteran an examination and obtained a medical opinion with respect to his claims. However, the Board finds that the July 2009 opinions are inadequate. Specifically, the service treatment records reflect that the Veteran's hearing thresholds were assessed on numerous occasions between 1962 and 1966 during his active duty service. Here, the Board notes that prior to November 1967, audiometric 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, the ASA standards must be converted to ISO-ANSI in order to adequately assess the Veteran's pre-November 1967 in-service hearing thresholds. In this case, the July 2009 VA examiner determined that the Veteran's in-service audiometric testing did not show hearing loss. However, the examiner failed to discuss whether or not the required conversion to ISO-ANSI units from the ASA units for the 1962 to 1966 audiometric test results was performed and considered in reaching this determination. Thus, it is unclear whether the examiner gave adequate consideration to the results of the in-service hearing assessments. Additionally, the Veteran has indicated that he first experienced hearing loss and tinnitus during service, but the July 2009 examiner did not include any discussion of whether or not the symptoms the Veteran has described as occurring in service and after service are consistent with his current hearing disorders. Instead, the examiner stated that the Veteran's February 1963 examination and his June 1966 separation examination showed hearing thresholds within normal limits, and thus, it was less likely that the Veteran's current hearing loss was related to noise exposure while on active duty. This opinion, however, does not give consideration to the Veteran's competent lay statements regarding the in-service onset of his hearing disorders and improperly relies on the absence of hearing loss documented in the Veteran's service treatment records. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.303 (2012); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (holding that the absence of in-service evidence of a hearing disability during service, i.e. one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim). Regarding the tinnitus claim, the July 2009 examiner responded "yes" to whether tinnitus is as likely as not a symptom associated with hearing loss. The examiner opined that it would require speculation to attribute tinnitus to noise exposure without some evidence of its presence or changes in hearing attributable to noise during active duty service. Again, the examiner based the opinion, in part, on the absence of changes in the Veteran's hearing shown in the service treatment records. Because of the deficiencies with the July 2009 VA opinions, there are no adequate medical opinions of record that address whether there is any relationship between the Veteran's active military service and his development of the bilateral hearing loss and tinnitus, both diagnosed during the July 2009 examination. Thus, a new medical opinion is necessary to a make determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the RO or the AMC must obtain adequate medical opinions from a qualified clinician prior to any further adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Obtain from the Veteran the names and addresses of all VA, government, and private physicians and/or medical facilities that have provided him with any treatment for his claimed hearing disorders, and secure all available relevant reports not already of record from those sources. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The Veteran must also be informed of the negative results and be given opportunity to secure the records. 2. After completing the above development, arrange for a review of the Veteran's claims file and any pertinent evidence in Virtual VA that is not contained in the claims files by an appropriate examiner in order to determine the nature, onset date and etiology of the Veteran's bilateral hearing loss and tinnitus disorders. The Veteran need not be reexamined, unless the examiner determines that another examination is necessary. In the event that the Veteran is provided an additional examination, any indicated tests and studies should be performed. Following a review of the evidence of record, the Veteran's military occupational specialty, the Veteran's history of in-service and any post-service noise exposure, the clinical findings of record, and with consideration of the Veteran's competent lay statements, the examiner must state whether any currently diagnosed bilateral hearing loss and tinnitus are at least as likely as not (a 50 percent probability or greater) related to the Veteran's military service, to include as due to exposure to acoustic trauma. The examiner must convert the Veteran's July 1962, February 1963, April 1966, and June 1966 in-service pure tone thresholds from ASA standards to ISO-ANSI standards prior to rendering any opinion. The examiner must be mindful that although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service. The examiner must also state whether any degree of tinnitus is at least as likely as not (a 50 percent probability or greater) related to or aggravated by bilateral hearing loss. In providing the requested opinions, the examiner must consider any additional medical opinions of record, to include the July 2009 VA opinions. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. After completing the above actions, conduct any other notice or development deemed necessary, to include providing proper notice with regards to the claim for service connection for tinnitus on a secondary basis. 4. Then, readjudicate the claims for service connection giving consideration to all relevant theories of entitlement. If any benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).