Citation Nr: 1328339 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 13-04 268 ) 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 D. Havivi, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 until May 1964 and from April 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Bilateral hearing loss and tinnitus are on appeal. In a January 22, 2013 VA-9 form from the Veteran's representative, only tinnitus was appealed. However, a January 28, 2013 VA-9 form directly from the Veteran himself indicated an election to appeal all issues, as Box A in Section 9 is checked. In the representative's August 2013 Informal Hearing Presentation (IHP), both hearing loss and tinnitus are addressed. When there is ambiguity as to a Veteran's substantive appeal, the Board is directed to seek clarification from the Veteran. See Evans v. Shinseki, 25 Vet. App. 7, 14 (2011). Here, we have conflicting VA-9 forms and an IHP. The Board could seek clarification, but that would be an unnecessary delay. Instead, the Board chooses to read the Veteran's filings liberally, choosing to put all issues in appellate status. Id. Furthermore, in Percy v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that the Board taking actions that would lead the Veteran to believe an issue is on appeal would waive objections to the timeliness of the filing of a VA-9. Percy v. Shinseki, 23 Vet. App. 37, 45-46 (2009). Similarly, the Board concludes that action taken by a Veteran's representative that lead a Veteran to believe an issue is on appeal waive any differences in the representative's VA-9 form. Percy, in conjunction with Evans, allows the Board to conclude that it must read the Veteran's filings liberally and may choose the broader interpretation of the filed forms, so long as this reading is not detrimental to the Veteran. Therefore, hearing loss and tinnitus are on appeal. The Veteran requested a Travel Board hearing in his January 2013 VA-9 form. However, this request was withdrawn when the Veteran communicated that he no longer wanted a hearing in a May 2013 letter, which he later confirmed in June 2013. 38 C.F.R. § 20.705(e) (2012). 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 Board finds it necessary to remand for further development of the case. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the instant case, such measurements could not be found or appropriately applied to § 3.385. The record shows that neither VA examiner was able to produce a reliable finding, such that neither a diagnosis nor etiology of hearing loss could be rendered. At the November 2012 examination, the examiner stated that she could not test any of the required frequencies and therefore could not obtain an average puretone threshold average for either ear. She stated that she could not do so because the "[v]olunteered thresholds were very inconsistent with speech reception thresholds in both ears, indicating a great degree of non-organicity in thresholds." She was able to obtain Maryland CNC speech discrimination scores, but deemed them inappropriate to use because of language difficulties, cognitive problems and inconsistency in the scores. At the February 2011 examination, the examiner was similarly unable to produce results upon which he could base a diagnosis. He noted that he could not obtain reliable results for either the Maryland CNC test or puretone threshold test and therefore he could not make a diagnosis of hearing loss. As one Maryland CNC speech discrimination score suggests the presence of hearing loss, and considering the fact that the puretone threshold results were unreliable in part due to language and cognitive difficulties, the Board finds that one more attempt to obtain valid scores should be made. See Barr v. Nicholson, 21 Vet. App. 303, 310-311 (2007) (once the VA undertakes the effort to provide an examination, it must provide an adequate one). The November 2012 examiner denied tinnitus based on the Veteran's statement that it began 10 years ago, almost 40 years after service. However, she did not discuss her rationale, rather only the gap between service and the onset of the disability. VA must consider lay evidence. The absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Here, the Veteran provided other records that suggest he had in-service exposure to loud noises and he also provided lay statements concerning the onset of his tinnitus in service. Therefore, we must remand for reexamination, including an opinion with full rationale for its conclusion. The Board finds that the development is insufficient for the purpose of determining whether the Veteran has a current hearing loss disability and tinnitus. As the Board may not rely on its own unsubstantiated medical opinions, a remand is required. Colvin v. Derwinski, 1 Vet. App. 171 (1991). To make the determination, VA must provide another examination to include audiometry and Maryland CNC speech discrimination findings and an opinion as to the etiology of any diagnosed hearing disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA audiology examination by a medical professional with sufficient expertise to determine the nature and etiology of any currently present bilateral hearing loss and tinnitus disabilities. This test should include audiometry and Maryland CNC speech discrimination findings. Based on these results, historical records and medical principles, the medical professional must render an opinion as to: (a) Whether the Veteran has a hearing loss disability recognized for VA purposes under 38 C.F.R. § 3.385 or tinnitus; and (b) Whether any diagnosed hearing loss disability or tinnitus is at least as likely as not (at least a 50 percent probability) causally or etiologically related to the Veteran's service, keeping in mind the Veteran's service as a light weapons infantryman and an armor crewman. A clear rationale for all opinions is required. If the examiner again determines that testing cannot conclusively diagnose a hearing loss disability, the examiner should so state, and discuss the reasons believed to be causing any unreliable test results. 2. When the development requested has been completed, the claim should again be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded reasonable opportunity to respond before the record is return to the Board for review. 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). _________________________________________________ CHERYL L. MASON 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).