Citation Nr: 1328859 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-18 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1956 to September 1960. This case comes to the Board of Veterans' Appeals (Board) on appeal of June and September 2010 rating decisions of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2013, a travel board hearing was held before the undersigned in Philadelphia, Pennsylvania. A transcript of the hearing is available for review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 contends that his bilateral hearing loss and tinnitus were caused by exposure to acoustic trauma of aircraft engines while he was on active duty. Review of the record shows that the Veteran's military occupational specialty (MOS) while on active duty was as an aircraft electrical repairman and that during the hearing before the undersigned in May 2013 he gave credible testimony of exposure to acoustic trauma that is considered consistent with the nature and circumstances of his service. It is also noted that he has submitted two medical opinions that support the contention that his hearing loss was, at least in part, caused by acoustic trauma during service. Review of the record shows that the Veteran's service treatment records (STRs) include a March 1957 notation that the Veteran complained of deafness in the right ear and an undated audiogram that demonstrated pure tone thresholds that are consistent with a hearing loss in each ear. The United States Court of Appeals for Veterans Claims (Court) has held that "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). An audiometric evaluation performed at the time of separation from active duty, in August 1960, showed a pure tone threshold of 30 dB at 250 hertz in the right ear, after conversion from ASA to ISO units. (Prior to October 31, 1967, audiometric testing is presumed to have been recorded in ASA units, rather than more sensitive ISO units that have been used since that date.) The Board notes that the Veteran was afforded VA audiologic evaluations in June and September 2010. After review of the record, the examiners rendered opinions that it was less likely than not that the Veteran's current hearing loss is related to service. One of the major reasons for these opinions was that the audiometric testing at separation from active duty showed the Veteran's hearing acuity to have been normal. As noted, after conversion to ISO units, the Veteran did demonstrate a hearing loss at separation from active duty. Additionally, the examiners did not address the Veteran's assertion of continuity of symptomatology since service. The Court held clearly held in Hensley. that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Id. Thus, the opinions rendered are incomplete and based upon an inaccurate fact that renders them inadequate for evaluation purposes and further development of the evidence is necessary in this case. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2012). Taking into account the Veteran's statements in support of his claim, as well as VA treatment reports of record which note that the Veteran has a current diagnoses of hearing loss and tinnitus, the Veteran's claims for service connection should be remanded for additional VA examinations so as to determine whether any currently-diagnosed hearing loss and tinnitus are etiologically-related to his period of active service. With regard to the VA audiological examination, the Board notes that the requested VA opinion must be consistent with the ruling in Hensley. As such, the examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes at the time of separation from service when forming an opinion. If the aforementioned is the basis, or crux, or the examiner's rationale, the opinion would be inadequate on which to base a decision. Accordingly, these issues are REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC shall schedule a VA audiological examination so as to assess the nature and etiology of the Veteran's currently-diagnosed hearing loss and tinnitus. The examiner must provide an opinion as to whether any identified hearing loss and tinnitus are at least as likely as not etiologically-related to his military service. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. Following a review of the claims folder, the examiner should address the following: A) Whether it is at least as likely as not that hearing loss originated during active service, or is otherwise related to active service. B) Whether it is at least as likely as not that tinnitus originated during active service, or is otherwise related to active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should also note in his or her opinion that a review of the claims file was conducted, and must discuss pertinent evidence within the claims file. Consideration must be given to the Veteran's assertion of continuity of symptomatology. 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. If it is the opinion of the examiner that the Veteran's current hearing loss is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question 2. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ D. C. SPICKLER 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).