Citation Nr: 1329389 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-08 554 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss disability. 2. Entitlement to service connection for claimed tinnitus. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2009 by the RO. In August 2009, the RO granted service connection to bilateral hearing loss and denied service connection for claimed tinnitus. The Veteran submitted a Notice of Disagreement with this rating decision, but a Statement of the Case (SOC) does not appear to have been furnished to the Veteran with respect to the issue of service connection for tinnitus. A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The claim for increase is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The currently demonstrated tinnitus is shown as likely as not to have been caused by the Veteran's exposure to hazardous noise levels in connection with his duties during service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002) ; 38 C.F.R. §§ 3.102, 3.303 (2012). REASON AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of VCAA is not required at this time. On review, the record indicates that the Veteran's claim of service connection for claimed tinnitus was denied in an August 2009 rating decision. The Veteran submitted a valid and timely Notice of Disagreement (NOD) with regard to the August 2009 rating decision. See 38 C.F.R. §§ 20.201, 20.302 (2012). Unfortunately, a Statement of the Case (SOC) which addresses the issue of service connection for the claimed tinnitus has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. However, given that the evidence of record is sufficient to favorably decide this matter on appeal, further delay essentially for procedural development is not indicated. As noted, the Veteran has already been granted service connection for a bilateral sensorineural hearing loss on the basis of his reported exposure to elevated and harmful noise levels while performing duty in close proximity to jet engines on an aircraft carrier during a period that extended for about twenty months from 1965 to 1967 and included service off the coast of the Republic of Vietnam. Initially, a careful review of the service treatment records shows that the Veteran was treated for ear problems manifested by complaints that his left ear was 'clogged up' in June 1965 and bilateral external otitis in August 1965. The Veteran's hearing was noted to be "15/15" in each ear at the time of his separation examination in May 1967, but audiometric testing was not performed at that time. At the time of his initial VA examination in October 2004, the Veteran reported being around jet engine noise for two years without ear protection while serving as a "re-fueler" on a carrier. Significantly, it was noted that he had not been exposed to any kind of excessive noise outside of that in the military. The VA examiner at that time opined that his bilateral sensorineural hearing loss was "at least as likely as not caused as a result of the noise exposure while in the military" without the benefit of hearing protection. In a statement submitted in August 2004 in support of his claim, the Veteran's private physician opined that the Veteran's bilateral "neurosensory hearing loss" was the "result of acoustic trauma while serving on the USS Kitty Hawk" during service. While a VA examiner in July 2009 opined that it was less likely as not that the Veteran's tinnitus "began in or became poorer during his military duty," this was solely based on history that the tinnitus had begun in approximately 1999 or about 32 years after separation from service. However, during the earlier VA examination in October 2004, the examiner noted that the Veteran had reported having "constant tinnitus" in both ears and was "uncertain of the onset." Thus, on this record, as the date of onset of the claimed tinnitus cannot identified clearly identified, the probative value of the July 2009 opinion is reduced. The Board also finds that the medical evidence generally tends to relate the onset of the Veteran's hearing problems to his exposure to acoustic trauma in the form of jet engine noise incident to duties on the carrier. Hence, based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current tinnitus as likely as not is causally related to the Veteran's only documented source of exposure to significant acoustic trauma during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for tinnitus is granted. REMAND The Veteran seeks a compensable evaluation for the service- connected bilateral hearing loss disability. The Veteran underwent a VA audiology examination in July 2009. At the September 2011 hearing, the Veteran testified that he was prescribed new hearing aids after the July 2009 VA examination and had to go back and have the hearing aids adjusted because he still could not hear. The Board interprets this as a statement that that his hearing has worsened in severity. Accordingly, a new VA examination to determine the severity of the bilateral service-connected hearing loss disability is warranted. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. During the September 2011 hearing, the Veteran stated that he received treatment at the Coatesville VA Medical Center (VAMC) and Wilmington VAMC. On remand, the Veteran's VA treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his bilateral hearing loss disability since 2009. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. A specific request should be made for records from the Coatesville VAMC and the Wilmington VAMC. 2. The RO also should have the Veteran scheduled for a VA audiological examination to determine the current severity of his service-connected hearing loss disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed (including audiological testing), and the results reported in detail. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should elicit a complete history from the Veteran. The examiner should specifically describe the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities. A complete rationale for all opinions expressed should be included in the examination report. 3. After completing all indicated development, the RO should readjudicate the claim for increase remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs