Citation Nr: 1327671 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-04 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his substantive appeal of February 2011, the Veteran requested that he be afforded a videoconference hearing before the Board. That proceeding was scheduled to occur in October 2012 and the Veteran was advised of the date, time, and location of that hearing long in advance of his hearing date. The Acting Veterans Law Judge who was to preside over the Veteran's hearing indicated by a handwritten annotation of the hearing notice letter that the Veteran had failed to report for his scheduled hearing. Also of record is an October 2012 letter from the Veteran to his representative, received subsequently by the Board, that he wished to cancel his hearing appearance due to work obligations and a lack of funds to travel to the hearing site. No other request for a hearing remains pending. This appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran-appellant if further action is required on his part. REMAND The Veteran alleges that he suffered acoustic trauma in service based on his proximity to aircraft aboard a Navy ship and that such excessive noise exposure led to the onset of his bilateral hearing loss and tinnitus. Through his representative, he asserts that a recent VA medical examination undertaken in May 2009 to evaluate the nature and etiology of the disorders in question was inadequate, as it was conducted without the benefit of review by the VA examiner of his service treatment records which identify audiometric findings on a single occasion indicating hearing loss of the left ear meeting the criteria of 38 C.F.R. § 3.385 (2012). The Veteran contends that the failure of the VA examiner to review service treatment records renders inadequate her opinion that no etiology could be ascertained without resort to mere speculation. The Board concurs. In addition, the VA examiner specifically noted that there was not a single audiogram on record to review, and while that statement may have been accurate as service treatment records were not then a part of the Veteran's claims folder, it is clear that multiple audiometric tests were in fact undertaken while the Veteran remained on active duty. Moreover, it is noted that the VA examiner erroneously characterized the audiometric data obtained in May 2009 as indicative of normal right ear hearing for VA purposes, when in actuality a pure tone threshold loss of 40 decibels at 4000 Hertz, meeting the criteria of 38 C.F.R. § 3.385 for hearing loss, was shown. These points reinforce the Veteran's contention that the May 2009 VA examination was inadequate and remand for a more comprehensive examination and nexus opinion based on all of the evidence on file, inclusive of service treatment records, is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination in order to ascertain more clearly the nature and etiology of his bilateral hearing loss and tinnitus. His VA claims file should be made available to the VA examiner in conjunction with the examination and the report of that examination should reflect whether the claims folder was made available and reviewed. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following question, offering a complete rationale for the opinion provided: Is it at least as likely as not (50 percent or more probability) that any hearing loss or tinnitus disorder of either of the Veteran's ears originated during his military service or is otherwise attributable to service or any event therein? Inservice acoustic trauma should be conceded in formulating that opinion and the significance, if any, of inservice audiometric testing in July 1968, particularly as to the left ear, should be fully discussed. Use by the VA examiner of the at least as likely as not language in responding is requested. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence, as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. 2. Lastly, readjudicate the issues on appeal, based on all of the evidence of record and all governing legal authority, and if any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time to respond, before the record is returned to the Board for further review. The Veteran need take no action until otherwise notified. The Veteran 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). _________________________________________________ M. C. GRAHAM Acting 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).