Citation Nr: 1330582 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-32 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In July 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans' Law Judge. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran contends that he was exposed to acoustic trauma during service, and that his current bilateral hearing loss and tinnitus are the result of that acoustic trauma. In his November 2011 substantive appeal, the Veteran asserted that his hearing disorders were the result of his constant exposure to loud noise and rifle fire during service without any type of hearing protection. He claims that any type of constant noise exposure will cause hearing damage. At his July 2013 hearing before the Board, the Veteran testified that he was exposed to mortar fire and over thousand rounds of artillery fire while serving in combat and on the front line in Korea. He stated that he did not wear any type of hearing protection. The Veteran's DD-214 shows that he served on active duty in the U.S. Army with the infantry. Although military occupational specialty is not noted, he received a Combat Infantry Badge. Thus, his claimed noise exposure is consistent with the circumstance of his combat service notwithstanding the fact that there is no official record of such incurrence. 38 U.S.C.A. § 1154(b). As such, extensive military noise exposure has been established in this case. The Veteran was provided a VA audiology examination in February 2010 in conjunction with the claims on appeal. The examiner noted that in complete review of the Veteran's claims file, on a National Guard physical in June 1963, 11 years after leaving active duty, the Veteran's hearing was within normal limits. Therefore, the examiner opined that the Veteran's military noise exposure has not caused or resulted in hearing loss or tinnitus. However, the Board finds this opinion not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). As a matter of fact, on the Veteran's June 1963 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 5 (15) / 20 (25) LEFT 5 (20) 5 (15) 5 (15) / 20 (25) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. 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, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) Although the February 2010 VA examiner noted that the Veteran's hearing was within normal limits on the Veteran's June 1963 hearing evaluation, the U.S. Court of Appeals for Veterans' Claims held that the threshold for normal hearing is from 0 to 20 decibels. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing CURRENT MEDICAL & TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988)). Therefore, some degree of bilateral hearing loss was shown at the 500 Hertz level in the right ear and the 4000 Hertz level in both ears, contrary to the February 2010 VA examiner's finding. With regard to tinnitus, during his July 2013 Board hearing, the Veteran testified that although he could not remember exactly when his tinnitus started, he currently experiences roaring sound in his ears, likened to the sound of a refrigerator or air-conditioner running. In this regard, the Board acknowledges that tinnitus, by definition, is "subjective," as its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the February 2010 VA examiner simply stated that the Veteran did not mention tinnitus during his case history interview. No information was elicited from the Veteran as to the history and complaints, and no examination findings were recorded. As such, given the deficiencies in the February 2010 VA examination, another VA medical opinion is required to adequately decide the merits of these claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records from the VAMC in Birmingham, Alabama and any associated outpatient clinics dated from November 2011 to the present. All records and/or responses received should be associated with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Schedule the Veteran for an appropriate VA examination to ascertain the current severity of the Veteran's service-connected bilateral hearing loss and tinnitus. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements, to include his testimony at his July 2013 Board hearing. The examiner must elicit from the Veteran information as to the history and complaints of the claimed disorders, and set forth the detailed examination findings. The examiner should then offer an opinion as to whether the Veteran's bilateral hearing loss or tinnitus is at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, to include combat noise exposure from mortar and artillery firings while serving in Korea. In rendering the requested opinion and rationale, the examiner must note that the fact that the Veteran's in-service examination was within normal limits is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. The examiner must also note that the reported audiometric findings on the Veteran's June 1963 reserve service audiogram should be reviewed and that applicable case law establishes that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensely v. Brown, 5 Vet. App. 155, 157 (1993). All necessary diagnostic testing should be conducted. All opinions must be supported by a complete rationale. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).