Citation Nr: 1329071 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-12 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran initially requested a hearing before the Board for his claim in his May 2011 appeal, but he withdrew his request for a hearing in February 2012. The Veteran properly withdrew his request for a hearing prior to the date of the hearing, in accordance with 38 C.F.R. § 20.702(e). 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran contends that he has bilateral hearing loss and bilateral tinnitus that were incurred during his military service. The Veteran stated that he served active duty from February 1966 to December 1969, and his job in service as a Morse Code Operator exposed him to hazardous noise from radio frequencies through the headphones he wore from 8 to 12 hours per day. The Veteran contends that this noise exposure caused him to currently suffer from extreme hearing loss and constant ringing in both ears. A VA examination and opinion were provided for the Veteran's claim, but the inadequacies evident in the examination and opinion require a remand. The Veteran's service treatment records reflect an enlistment audiometric examination in December 1965, and a separation audiometric examination in November 1969 under International Standards Organization (ISO)-1964 standards according to the stamp on the examination report. Prior to November 1, 1967, service department audiometric test 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, and to determine whether significant threshold shifts in hearing were incurred between enlistment and separation, service department audiometric test results through October 31, 1967 under the ASA standards must be converted to ISO-ANSI standards. In this case, the VA examiner did not indicate whether the audiometric test results were converted, if conversion was indeed necessary, and did not specifically discuss whether there were any significant threshold changes at any Hertz level between enlistment and separation for the Veteran in the February 2011 examination or the March 2011 clarification. The examination and opinion are inadequate in this respect. In addition, the VA examiner's rationale provided in the clarified opinion in March 2011 is inadequate and incomplete. The VA examiner corrected his initial misstatement from February 2011 and acknowledged in the March 2011 clarification that the Veteran does have current hearing loss as defined by the regulations. The VA examiner reaffirmed his ultimate opinion that it is less likely as not that the Veteran's current hearing loss is related to military acoustic trauma. One basis for the opinion was that the Veteran had "normal hearing sensitivity" at the time of separation from service. However, this statement on "normal hearing sensitivity" at separation does not address the significance, if any, of any decibel declines in pure tone threshold levels during service, in light of conversion of in-service audiometric results to ISO-ANSI standards and comparison of enlistment and separation audiometric test results. Although an examiner need not comment on all evidence of record, he must address evidence that is at odds with the underlying premise for his conclusion. Further, the VA examiner also based his opinion on the Institute of Medicine report on noise exposure in the military, which reportedly indicates that noise induced hearing loss occurs immediately and does not have a delayed onset weeks, months, or years after the exposure event(s). The VA examiner cited this Institute of Medicine report, but failed to state how the Institute of Medicine report and its rationale apply to this particular Veteran's claims for hearing loss and tinnitus in light of his work as a Morse Code Operator while in active military service, so the opinion is deficient in this respect. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all medical treatment providers who have treated him from 1969 to present for his hearing loss and tinnitus, and obtain an authorization to request medical treatment records from each provider identified by the Veteran. 2. The RO must obtain medical treatment records from each provider identified by the Veteran in Directive #1, and associate all of the records with the claims file. 3. Obtain all VA treatment records concerning hearing loss and tinnitus from February 2011 to the present and associate the records with the claims file. 4. After completing the above development, ensure that the Veteran is scheduled for a VA examination for his hearing loss and tinnitus. The claims file must be provided to the examiner, and the examiner must review the claims file in conjunction with the audiometric examination. 5. The examiner must conduct an interview with the Veteran, and record in detail the history of his hearing loss and tinnitus. The examiner must obtain a detailed history concerning the onset of symptoms, frequency of occurrence, and duration of hearing loss and tinnitus at all time periods beginning from the alleged onset of both conditions in 1966 to the present. a) In order to facilitate data comparison, the examiner must convert the service department audiometric test results included in the record that were generated through October 31, 1967 from American Standards Association (ASA) measurements to the International Standards Organization (ISO)-American National Standards Institute (ANSI) measurements. If conversion is not necessary for a set of service department audiometric test results, the examiner must indicate why the conversion is unnecessary. b) After converting the service department audiometric test results according to Directive "a", the examiner must identify and list all Hertz levels for each ear where there were pure tone threshold changes between the enlistment examination in December 1965 and the separation examination in November 1969. c) After completing the Directives above, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current hearing loss and tinnitus are related to service, including to any threshold shifts shown during service, and/or noise exposure by way of radio frequencies as a Morse Code Operator. The examiner must provide a detailed rationale explaining the opinion. The rationale should include a discussion of the Veteran's lay assertions concerning the onset, duration and frequency of hearing loss and tinnitus. The examiner should discuss the significance, if any, of any pure tone threshold changes between the enlistment examination in December 1965 and the separation examination in November 1969 as it relates to the etiology of the Veteran's hearing loss and tinnitus. d) If it is determined that hearing loss is related to service, the examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current tinnitus is caused by hearing loss. If tinnitus is not caused by hearing loss, please state whether it is at least as likely as not that hearing loss aggravates (increases the severity of tinnitus) beyond the natural progress of the disorder. If so, please identify that aspect of the disability which is due to aggravation. e) The examiner must address the Institute of Medicine Report on noise exposure in the military relied upon in the February 2011 and March 2011 opinions, which reportedly states that noise induced hearing loss occurs immediately and does not have a delayed onset weeks, months, or years after the exposure event(s). The examiner should explain the rationale presented in the Institute of Medicine Report and explain why the reported Institute of Medicine Report's rationale and conclusion that noise induced hearing loss occurs immediately and does not have a delayed onset weeks, months, or years after the exposure event(s) is or is not applicable to this particular Veteran's claims for hearing loss and tinnitus. f) The examiner must also explain whether there are medical reports or studies that indicate that noise induced hearing loss/tinnitus can have a delayed onset weeks, months, or years after the exposure event(s), and explain why these other medical reports or studies are or are not applicable in this Veteran's claims for hearing loss and tinnitus. 6. Then, re-adjudicate the issue of entitlement to service connection for hearing loss and tinnitus on the merits. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Then return the case to the Board, if in order. 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). _________________________________________________ K. OSBORNE 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).