Citation Nr: 1329203 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-08 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1997 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After reviewing the record, the Board finds that additional evidentiary development is needed before proceeding to evaluate the merits of the Veteran's claims. In this case, the Veteran contends that he has current bilateral hearing loss and tinnitus as the result of being exposed to the loud noise of mortar rounds during training exercises while serving as a mortarman in the Army. The Veteran's DD Form 214 lists his primary specialty as indirect fire infantryman, and exposure to loud noise during training exercises is consistent with the circumstances and conditions of his service; therefore, the Board finds the Veteran's account of military noise exposure credible. Also, the Veteran has competently reported that he experiences tinnitus (i.e., ringing in the ears), and a February 2002 private treatment record includes a finding of conductive hearing loss bilaterally. Therefore, there is evidence of record that indicates that the Veteran has current tinnitus, as well as a current hearing loss disability. The Board also observes that there is evidence that the Veteran has had a long history of ear problems since childhood, which may be related to the claimed disabilities. See, e.g., February 2002 letter from Dr. A.S. The Veteran has not yet been afforded with a medical examination and a medical opinion has not been obtained in connection with the claims. In consideration of the foregoing, and the heightened duty to assist in this case due to missing service treatment records, the Board finds that a remand for a VA medical examination with a medical opinion is necessary. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to assess the current nature and etiology of tinnitus and a hearing loss disability. All relevant documents should be made available to and reviewed by the examiner in rendering the opinion. The examiner should confirm that the record was reviewed. An interview of the Veteran regarding his relevant medical history, audiological examination, and all tests and studies required to respond to the following questions should be performed. Based on review of the appropriate records, the examiner should provide the following medical opinions: a) Did the Veteran's tinnitus and/or hearing loss disability clearly and unmistakably (i.e., obviously and manifestly) exist prior to service entrance in October 1997? Please explain the answer, noting the Veteran's long history of ear problems since childhood. See, e.g., February 2002 letter from Dr. A.S. b) For any preexisting tinnitus and/or hearing loss disability, was the preexisting disability clearly and unmistakably (i.e., obvious and manifest) not aggravated (permanent worsening beyond normal progress) during active service? c) Assuming for purposes of this question that tinnitus and/or a hearing loss disability did not preexist service, is it as likely as not (i.e., a probability of 50 percent or greater) that the current tinnitus and/or hearing loss disability is causally or etiologically related to active duty service? Please explain the answer, noting the Veteran's exposure to loud noise during training exercises as an indirect fire infantryman in the Army. The VA 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 causation as to find against causation. The examiner is requested to provide a rationale for any opinion provided. In answering all questions, the examiner should review all evidence of record, including the Veteran's reports and history, not just medical documents. In responding to these questions, the examiner should note that temporary or intermittent flare-ups of a pre-existing disease are not sufficient to be considered "aggravation in service" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 2. Thereafter, the remanded claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K. J. ALIBRANDO 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) (2013).