Citation Nr: 1331467 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-04 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from July 1965 until July 1967. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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 A preliminary review of the record reflects that further development is necessary. The Veteran's service treatment records include a July 1964 pre-induction examination and a July 1965 induction examination which included audiological findings. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. In the charts below, the figures in parentheses represent ISO units. The July 1964 pre-induction examination reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) X 0 (5) LEFT 10 (25) 25 (35) 25 (35) X 30 (35) The July 1965 induction examination reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) -5 (5) X 0 (5) LEFT 10 (25) 20 (30) 20 (30) X 30 (35) The Court has indicated that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Reviewing the ISO units above, the Veteran clearly had hearing above 20 decibels in the 500 hertz threshold of the right ear and in the 500, 1000, 2000, and 4000 hertz threshold of the left ear upon his entrance into service. Where a disorder is noted on service entrance or a Veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096. This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Horn v. Shinseki, 25 Vet. App. at 235 (2012); see also 38 C.F.R. § 3.306(b) (2013). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The March 2011 VA examiner was only asked whether the hearing loss was due to or a result of noise exposure. Accordingly, as the examination did not consider the proper legal standards, the March 2011 VA examination is not adequate and another VA examination must be obtained. See 38 C.F.R. § 4.2. Furthermore, the March 2011 examiner noted that he could not provide an opinion as to the etiology of the hearing loss without resort to speculation as only a whispered voice test was provided at separation and there was no other audiometric data available. However, the service treatment records include an undated graphical audiometer report. It is unclear whether this report corresponds to the pre-induction or induction examinations, but it appears to be an unrelated examination as the spikes for the left ear in particular suggest thresholds worse than those reported in the pre-induction and induction reports. In providing an opinion, the examiner should also interpret and comment upon this report. See e.g. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value). Concerning the claim for tinnitus, the March 2011 VA examiner provided conflicting opinions. In answering whether the tinnitus was associated with the hearing loss, the examiner noted that he could not provide an opinion as to the etiology of the tinnitus without resorting to speculation. No further rationale was provided but the examination report indicated that the RO should determine whether further non-audiological examination was needed to determine the etiology of the tinnitus. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (indicating that the examiner must explain why the requested opinion would be speculative before the Board could rely on such a conclusion.). On the next page, however, the examiner concluded that it was less likely as not that the tinnitus was related to noise exposure based upon the Veteran's report of onset being 10 years prior. Given the conflicting opinions and suggestion that further information may be required, the report should be returned to the examiner for clarification. Accordingly, the case is REMANDED for the following action: 1. The claims file should be sent to the examiner who conducted the March 2011 VA examination for clarification of the opinion provided. If the examiner that evaluated the Veteran in March 2011 is not available to provide a response, then any similarly qualified VA examiner may answer this inquiry. If additional examination of the Veteran is deemed necessary by the examiner, schedule the Veteran for an appropriate examination, perform all necessary tests, and respond to the above question(s). Following a review of the file, the examiner should comment upon the following: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss increased in severity during the his service? In providing this opinion the examiner must comment upon the undated graphical audiogram in the service treatment records. The examiner must also comment upon the lay statements concerning the Veteran's difficulty hearing after service. b) If the hearing loss increased in severity during the Veteran's service, then the examiner should opine as to whether the evidence clearly and unmistakably (undebatably) demonstrates that the increase was due to the natural progression of the hearing loss disability? c) Whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed tinnitus was caused or aggravated by the Veteran's service? In providing this opinion the examiner must also comment upon the Veteran's noise exposure during service. d) Whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed tinnitus was caused or aggravated by any currently diagnosed hearing loss disability. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. 2. When the development requested has been completed, the case should again be reviewed by the RO/AMC and the claims remaining on appeal readjudicated. If the benefits sought are not granted, the Veteran should be furnished a SSOC, and be afforded a reasonable opportunity to respond before the record is returned to the Board 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals