Citation Nr: 1329589 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-16 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to these claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he is entitled to service connection for both bilateral hearing loss and tinnitus due to noise exposure in service. Initially, the Board has reviewed the Veteran's claims file and recognizes, as evidenced by the Veteran's DD Form 214 and service personnel records, that he was a Motor Vehicle Operator during service and that he had service in the Republic of Vietnam during the Vietnam Era. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). At the time of the Veteran's entry into active service, auditory thresholds in the left ear were all 15 decibels or below; thus, the Veteran entered service with normal hearing in the left ear. As to the right ear, auditory thresholds at 500, 1000, 2000, 3000, and 4000 Hertz were 5, 5, 10, 25, and 50 decibels, respectively. Thus, the Veteran entered service with a noted right ear hearing loss disability as defined by VA regulation. The Veteran was afforded VA examination in June 2011 at which time sensorineural hearing loss was confirmed in each ear, as was the existence of tinnitus. Thus, the record includes a current diagnosis of the claimed disabilities coupled with in-service noise exposure, yet with evidence of a preexisting right ear hearing loss disability. The questions, therefore, are whether the current left ear hearing loss and bilateral tinnitus disabilities were caused by the in-service noise exposure, and whether the preexisting right ear hearing loss was aggravated by the in- service noise exposure. The June 2011 VA examiner opined that the Veteran's hearing loss and tinnitus were "less likely as not caused" by or a result of military acoustic trauma. The basis for this opinion was as follows: Entrance exam documented a pre existing hearing loss in the right ear. Left ear was normal. Exit exam was a whisper test which is not valid. The [Veteran's military occupational specialty] likely exposed him to a moderate degree of high risk noise but how often and to what degree is speculation. There was no indication of treatment for or complaints of aggravated hearing loss and/or tinnitus during active duty. The [V]eteran has a significant history of civilian occupational noise exposure (assembly line worker for [F]ord [M]otor [C]ompany) which may account for the current degree of hearing loss and reported tinnitus. While the examiner recognized the status of the Veteran's left and right ears upon entry into service, as well as the in-service noise exposure, the basis for this negative opinion was lacking. In particular, the examiner based the opinion on the fact that there was "no indication of treatment for or complaints of aggravated hearing loss and/or tinnitus during active duty." The requirements for service connection for hearing loss need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. A claimant is not prevented from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). Service connection is not precluded simply because the regulation's requirements were first met after service. Moreover, the examiner's opinion was also based on the Veteran's exposure to post-service noise exposure, yet the examiner failed to recognize the Veteran's statements submitted in support of his claim. In particular, the Veteran clearly noted on his June 2012 VA Form 9 that during service he was not provided with or advised to wear hearing protection while in Vietnam, but after service, in his occupation, he "always wore adequate hearing protection." As to the Veteran's tinnitus, the Veteran has stated several times that he has had ringing in his ears since his time in Vietnam. The examiner failed to consider these lay statements when rendering the opinion on these claims. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). As such, the June 2011 VA examiner's rationale is inadequate. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Accordingly, the claims for service connection for bilateral hearing loss and tinnitus are remanded for the following action: 1. The RO must obtain a new VA medical opinion from the audiologist who conducted the June 2011 VA audiological examination, or from another audiologist if the original audiologist is unavailable, as to whether any degree of the Veteran's currently diagnosed left ear hearing loss and bilateral tinnitus is related to his military service and the noise exposure therein, and whether the preexisting right ear hearing loss was aggravated by his military service and the noise exposure therein. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based upon review of the evidence of record, to include the service and any post-service medical records, to specifically include the Veteran's service induction and discharge examinations, and with consideration of the Veteran's lay statements related to his noise exposure, service and post-service hearing protection, and the history of the ringing in his ears, the audiologist must provide an opinion as to whether any degree of the Veteran's current left ear hearing loss and/or bilateral tinnitus is associated with his military service, to include exposure to noise. With regard to the Veteran's preexisting right ear hearing loss disability, the examiner must specifically opine as to whether the preexisting hearing loss was permanently aggravated beyond its natural progression by military service, to include in-service noise exposure. The examiner is reminded that VA laws and regulations do not preclude service connection for post-service hearing loss where hearing was within normal limits at the time of separation from service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 2. After completing the above actions, and any other development deemed necessary, the claims must be readjudicated. If any claim on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the claim must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).