Citation Nr: 1329818 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-08 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from December 1970 to December 1974 and from September 1976 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. 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 Board finds that additional development is required before the Veteran's claims for service connection for bilateral hearing loss disability and tinnitus are decided. The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of hazardous noise exposure sustained during service. Specifically, the Veteran has reported hazardous noise exposure in the form of weaponry onboard a naval vessel. The Veteran's DD Form 214 lists his Navy Enlistment Occupation (NEO) as RM (Radioman) and service personnel records (SPRs) show that the Veteran did serve aboard naval vessels. Therefore, the Board concedes acoustic trauma during service. In November 2007, the Veteran underwent a VAMC audiology consultation. The examiner diagnosed mild to moderate sensorineural hearing loss, bilaterally, and tinnitus. The examiner stated that the Veteran had post-service occupational noise exposure as a city maintenance worker, and recreational noise exposure to motorcycles, playing the drums for 30 years, and practicing martial arts. The examiner also noted that the Veteran first started to notice the tinnitus more in the early 1980s. In June 2008, the Veteran underwent another VAMC audiology consultation. The examiner diagnosed mild to moderate sensorineural hearing loss, bilaterally, and tinnitus. The examiner noted that the Veteran reported more difficulty hearing and experiencing louder ringing. In April 2009, the Veteran underwent a VA examination to determine the nature and etiology of his bilateral hearing loss disability and tinnitus. The examiner diagnosed mild to moderately severe sensorineural hearing loss, bilaterally, and tinnitus. She opined that the Veteran's bilateral hearing loss was less likely as not related to military noise exposure. The examiner reviewed the claims file and service medical records. The examiner noted that the Veteran's hearing was normal when tested at military enlistment in 1976 and that the Veteran was not involved in any combat prior to his separation in 1977. She noted that the Veteran's service medical records did not contain any reports of hearing loss. The examiner stated that the Veteran had post-service occupational noise exposure as a city maintenance worker and recreational noise exposure to motorcycles and playing drums. Regarding the Veteran's tinnitus, the examiner noted that the onset of the ear ringing occurred in the 1980s and that, although it occurred bilaterally, the left ear was worse than the right. She stated that the etiology of the tinnitus was not known, and that it is not known whether the bilateral hearing loss and the tinnitus are due to the same etiology. A review of the Veteran's service medical records shows that a December 1970 audiometric evaluation revealed normal hearing for VA purposes. Reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT -5 -5 - 5 Not tested -5 LEFT -5 -5 - 5 Not tested -5 The Veteran's hearing was tested again in a May 1971 examination. The May 1971 audiogram results were identical to the ones from December 1970. The December 1974 separation examination tested the Veteran's hearing only through a "whisper test," therefore, there are no audiometric results from the time of the Veteran's separation from his first period of active service available for comparison purposes. The September 1976 re-enlistment examination showed a change bilaterally, although the results were still normal for VA purposes. 38 C.F.R. § 3.385 (2012). Reported puretone thresholds, in decibels, were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 0 0 0 Not tested 0 LEFT 15 5 0 Not tested 5 No exit examination records are present in the Veteran's file to indicate the state of his hearing in or around June 1977. The threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's service medical records show that while he did not have bilateral hearing loss for VA purposes during active service, his hearing demonstrated a threshold change between his May 1971 audiogram and his September 1976 audiogram. While the September 1976 audiogram was performed nearly two years following the Veteran's separation from his first period of active service, as no audiogram was conducted at the Veteran's December 1974 exit examination, it cannot be determined whether the Veteran's hearing changed prior to his December 1974 separation. The April 2009 VA examiner did not address the threshold shift in the Veteran's hearing acuity. Nor did the examiner provide any basis for her opinion other than the fact that the Veteran did not complain of hearing loss during service or at the exit examination. Unfortunately, in this regard, the opinion is inadequate. The United States Court of Appeals for Veterans Claims (Court) has found examinations inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran should be provided a new VA examination to determine the nature and etiology of any current bilateral hearing loss disability. The Board notes that the April 2009 VA examiner stated that the Veteran reported that he did not experience tinnitus until the 1980s, which was several years after the Veteran was discharged from active service. The Board notes that this is inconsistent with the notation in the November 2007 audiological consultation that the Veteran noticed his tinnitus symptoms more in the 1980s, and the Veteran's October 2008 statement, in which he reported that he had experienced tinnitus since his active service, and specifically since 1972. Further, the VA examiner did not provide an opinion regarding the etiology of the Veteran's tinnitus. Therefore, this matter should also be readdressed on a new examination. Current treatment records should be obtained before a decision is rendered with regard to the above issues. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and provide authorization for VA to obtain medical records from VA and non-VA health care providers for the treatment of for bilateral hearing loss and tinnitus. 2. Then, obtain all pertinent VA medical records, not yet associated with the claims file, and non-VA medical records that are identified by the Veteran. Associate those records with the file. If any medical records are not available, the applicable provisions of 38 C.F.R. § 3.159 must be followed. 3. Thereafter, regardless of whether additional documents are obtained, schedule the Veteran for another VA examination for his hearing loss and tinnitus claims. The examiner should provide an opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's bilateral hearing loss disability and tinnitus are related to service, including any in-service acoustic trauma, taking into account the Veteran's medical, occupational, and recreational history since service, and his claim of continuing symptoms since service. 4. The RO/AMC should review the claims folder to ensure that all of the remand directives have been accomplished, and should take any additional steps necessary to fully comply with the Board's remand. 5. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond to it. The case should then be returned to the Board, if in order, 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). 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). _________________________________________________ Michael J. Skaltsounis Acting 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).