Citation Nr: 1328350 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 07-01 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: David L. Huffman, Esq. ATTORNEY FOR THE BOARD Paul Sorisio, Senior Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to December 1969. These matters come before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied service connection for hearing loss and tinnitus. The Veteran had previously indicated his desire to testify at a Travel Board hearing. See January 2007 VA Form 9. In correspondence received in March 2010, the Veteran withdrew his hearing request. Therefore, the Board will proceed with consideration of his claims remaining on appeal. In June 2010 and January 2012, the Board remanded these matters to the Appeals Management Center (AMC) in Washington, DC for additional development. After partially completing the requested actions, the AMC continued the denial of the above listed issues (as reflected in June 2011 and March 2012 Supplemental Statements of the Case) and returned the case to the Board for further appellate consideration. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND The issues listed on the title page must be remanded due to the failure of the AOJ to fully comply with one of the Board's January 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The first directive of the January 2012 Board remand instructed the RO/AMC to contact the Clarksburg VAMC and attempt to obtain a copy of the August 2004 Ears, Nose and Throat (ENT) examination report. The Veteran's statements and both prior Board remands indicate that the record in question is dated August 17, 2004. The record reflects that an August 2004 audio report was associated with the claims file after the last Board remand. However, there is a hole-punch exactly through the day and it is thus not readable. The Veteran has reported that he was informed by this ENT examiner that his hearing loss and tinnitus disabilities were likely related to his service. In this regard, there is no indication on this newly obtained August 2004 record that it was completed by an ENT clinician or that a positive nexus opinion was provided. The Veteran also claims in a March 2012 statement that this "newly" obtained August 2004 report has been of record throughout the appeal. Indeed, the record associated with the file appears to be the August 10, 2004 VA audiological examination. Based on the foregoing, the Board finds that the record associated with the file since the January 2012 Remand is not the August 17, 2004 ENT report and another remand is necessary for attempts to obtain this VA record. Despite the fact that a January 2012 addendum report was obtained from the August 2010 VA audiologist in accordance with the last Board remand, the Board now finds that a new VA audiological examination is necessary to decide these claims as will be explained below. The addendum opinion was obtained so the August 2010 VA examiner could explain the significance of the finding of pure tone thresholds with a nonorganic component, to include why this rendered the current audiological test results unreliable. The addendum was also requested by the Board to allow this examiner to provide a rationale for the opinion that the Veteran's hearing loss and tinnitus were occupationally induced. In the March 2012 statement, the Veteran stated that he recently had his hearing aids repaired so they are not calibrated to the 2007 settings. He essentially argues that this is evidence that the 2010 and 2011 VA examinations are not correct and that his hearing acuity has worsened. The examiner opined that the Veteran's post-service noise exposure caused his hearing loss. The examination appears to have based the addendum opinion on the premise that the Veteran did not have any hearing loss at discharge from service in 1969. This reasoning is inconsistent with the U.S. Court of Appeals for Veterans Claims (Court) ruling in Hensley v. Brown that found 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. 5 Vet. App. 155, 157 (1993). The Board notes that the Court's ruling in Hensley is consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. In sum, as the Veteran indicates his hearing acuity has worsened and to allow the examiner to consider the Court's ruling in Hensley when formulating an opinion, the Board finds a remand is necessary for a new audiological examination and etiological opinion. Accordingly, the case is REMANDED for the following actions: 1. Contact the Clarksburg VAMC and attempt to obtain a copy of the August 17, 2004 VA ENT report. Efforts to obtain this VA record must continue unless it is documented that it does not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). If continued efforts reveal that this record is unobtainable or does not exist, document such in the claims file and notify the Veteran (and his representative) of this in accordance with 38 C.F.R. § 3.159(e) (2012). 2. Whether or not the August 17, 2004 ENT report is obtained, schedule the Veteran for an audiological examination for the purpose of ascertaining whether his hearing loss and tinnitus are the result of acoustic trauma suffered in active service. Schedule the audiological examination with a different examiner than the one who conducted the August 2010 examination and provided the January 2012 addendum report, unless no other audiologists are available. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA and VBMS) and a copy of this Remand must be made available to and be reviewed by the examiner. Following examination, interview of the Veteran, and review of the claims folder, the examiner is requested to answer the following question: Is it at least as likely as not (50 percent or greater probability) the Veteran's hearing loss and tinnitus are causally related to his period of active service, including in-service combat acoustic trauma? The examiner should consider the Veteran's statements that he used earplugs during his post-service occupational activities with a jack hammer, but not during his in-service combat activities in Vietnam. Additionally, if this examiner finds that the Veteran's pure tone thresholds have a nonorganic component that render the test results unreliable, explain this significance. The examiner is reminded that the Veteran has already established a current hearing loss disability for VA purposes and his in- service acoustic trauma has been established via his combat service in Vietnam. Comprehensive explanations for all opinions must be provided in the examination report, to include if the examiner finds that the Veteran's hearing loss is due to post-service occupational exposure. Further, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non- ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate per Hensley v. Brown, 5 Vet. App. 155 (1993). If the examiner cannot provide an opinion without resorting to speculation, it must be so stated, and the examiner must provide the reason(s) why speculation is required. 3. Then, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. Thereafter, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ S. C. KREMBS 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).