Citation Nr: 1331885 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-32 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant; Appellant's spouse ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966 with additional service in the Army Reserve from 1974 to 1992. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the Board sitting at the RO in August 2011. A transcript of the hearing is associated with the claims file. The Virtual VA paperless claims processing system does not contain additional evidence relevant to this appeal. 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 remand is necessary to obtain the Veteran's Army Reserve personnel records and afford the Veteran an additional examination to consider the nature and frequency of noise exposure during active duty for training or inactive duty training and to consider the history of symptoms and limitations reported by the Veteran and his spouse at the August 2011 Board hearing. For VA purposes, impaired hearing is considered to be a disability 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. Where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In order for a veteran to be eligible for service connection for disability incurred during his inactive service, the record must establish by a preponderance of the evidence that he was disabled during active duty for training due to a disease or injury incurred or aggravated in the line of duty or he was disabled from an injury incurred or aggravated during inactive duty training. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The Veteran served on active duty as a U.S. Army helicopter mechanic and crewmember. In an April 2010 notice of disagreement and in an August 2011 Board hearing, the Veteran contended that he was exposed to high levels of noise from helicopter testing and operations and small arms firing. The Veteran also reported service in the Army Reserve from 1974 to 1992 but did not discuss the nature or frequency of his duties or describe any additional noise exposure on active duty for training or inactive duty training. Therefore, a request for service personnel records for the Veteran's Reserve service is necessary to verify the time and nature of the service. Additionally, the Veteran must be afforded an opportunity to describe the nature and frequency of his Reserve duties and any exposure to acoustic trauma. Active duty enlistment and discharge examination audiograms showed normal hearing with no degrading trend. In an April 1974 Reserve enlistment examination, abnormal hearing was noted at higher frequencies in the right ear but the results did not meet the VA criteria for disability. Subsequent Reserve testing in 1978, 1985, 1986, and 1991 and testing by his employer from 1992 to 1996 showed a degrading trend with the loss of hearing acuity in the right ear satisfying the criteria for disability. A private audiogram obtained in October 2005 and a VA audiometric test in April 2010 both showed a loss of bilateral hearing acuity that met the VA criteria for disability. There is no mention of symptoms of tinnitus in any records prior to the April 2011 examination, although the Veteran testified that he started to experience ringing or buzzing in his ears during rifle range practice, and he states that he currently experiences a hissing sound in his ears. (See hearing transcripts, pages 7 and 10.) In the April 2010 examination, a VA audiologist noted a review of the claims file and the Veteran's report of exposure to helicopter operations and small arms fire, the onset of tinnitus after small arms training on active duty in Korea, and the use of ear protection when participating in civilian occupational and recreational activities. The audiologist concluded that bilateral hearing loss and tinnitus were not due to acoustic trauma in service but referred only to the active duty enlistment, discharge, and outpatient records. The audiologist did not consider the results of Reserve testing and whether any Reserve noise exposure caused or aggravated the disability. The audiologist also did not have the opportunity to consider the testimony of the Veteran and his spouse at the Board hearing. Therefore, an additional VA examination to consider the Veteran's Reserve duties, test results, and lay evidence is necessary to decide the claim. 38 C.F.R. § 3.159(c)(2013). Accordingly, the case is REMANDED for the following action: 1. Request from the appropriate agency the Veteran's Army Reserve Personnel records for service from 1974 to 1992. Associate any records received with the claims file. 2. Ask the Veteran about the nature and frequency of his duties and any high noise exposure during Reserve active duty for training and inactive duty training. Associate any response received with the claims file. 3. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA audiometric examination. Request that the examiner review the claims file and note the review in an examination report. a. Request that the examiner perform a VA organic ear and audiometric examination and provide a current assessment and diagnosis for tinnitus and any measured hearing acuity deficits. b. Assuming that the Veteran was exposed to acoustic trauma from helicopter machinery noise and small arms fire on active duty and, if shown in personnel records or lay evidence, during active duty for training or inactive duty, request that the examiner provide an opinion whether it is at least as likely as not (50 percent probability or greater) that any loss of hearing acuity or tinnitus was caused or aggravated by exposure to that noise or any other aspect of both active and Reserve service. c. The examiner must provide the reasons for the opinion or why an opinion cannot be provided such as inadequate evidence, shortcomings in the state of medical knowledge, or lack of experience or training by the examiner. 4. Thereafter, readjudicate the claims for service connection for bilateral hearing loss and tinnitus. If any benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford an appropriate 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). _________________________________________________ MARJORIE A. AUER 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).