Citation Nr: 1332549 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-21 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to December 1968 with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and April 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in September 2009. A statement of the case was issued in April 2010, and a substantive appeal was received in May 2010. The Veteran failed to appear for a requested Travel Board hearing in November 2012. He has not submitted an explanation of good cause for failing to report, nor has he requested any rescheduling. Thus, the Board shall proceed with appellate review at this time. 38 C.F.R. § 20.704 (2012). 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 his exposure to acoustic trauma during active service caused his bilateral hearing loss and tinnitus. The Veteran earned the Combat Medical Badge; as such, his statements regarding acoustic trauma during combat action in Vietnam are accepted. 38 U.S.C.A. § 1154(b) (West 2002). Bilateral Hearing Loss The VA provided the Veteran an audiological examination in February 2009. The examiner diagnosed the Veteran with moderate to severe sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. VA audiometry puretone thresholds reveal that the Veteran has bilateral hearing loss as defined by 38 C.F.R. § 3.385. The remaining question is whether the current hearing loss is related to the Veteran's service. Defective hearing was noted at the time of the Veteran's entrance examination in December 1966. The presumption of soundness therefore does not attach. The question is whether the preexisting bilateral hearing loss was aggravated by the Veteran's service. See generally 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In February 2009, the VA examiner compared the results of the Veteran's induction and separation audiological examinations. He found that hearing loss was revealed at the same frequencies in both examinations. He further noted that the Veteran's hearing improved at some frequencies, but declined in his left ear at 4000 Hertz. He found that there was "no conclusive evidence" that this minor loss in hearing ability "can definitely be attributed to military noise exposure." Furthermore, he concluded that he could not determine which amount of the Veteran's hearing loss was caused by military noise exposure rather than non-military noise exposure without resorting to mere speculation. The examiner's opinion that there was "no conclusive evidence" of an increase of the severity of hearing loss during service would probably not survive judicial review since by law VA requires only that a disorder be at least as likely as not (a 50% or higher degree of probability) related to service. As such, remand is required to secure a compliant, adequate examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also notes that the Veteran reported in a September 2009 letter that his audiologist told him that an improvement of his hearing acuity during service (as suggested by the 2009 VA examiner) was not possible. The Veteran should be given the opportunity to submit any evidence from his audiologist in support of his claim. Tinnitus On the Veteran's October 2008 claim for service connection for bilateral hearing loss, he noted that in-service noise exposure left his ears ringing for days. The February 2009 VA examination report noted that the Veteran did not report any subjective tinnitus. In a September 2009 letter, the Veteran described how the exposure to the noise of artillery repeatedly left ringing in his ears. He said, "Oftentimes when it is quiet I can still hear the ringing." The Veteran is competent to report that he experiences tinnitus, as well as the frequency and severity. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Clarification is necessary to determine whether or not the Veteran currently has tinnitus. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be given the opportunity to submit any supporting evidence/opinion from his audiologist regarding any change in hearing acuity during service as alluded to by the Veteran in his September 2009 letter. 2. The Veteran should then be scheduled for a VA audiological examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Examination results should be clearly reported, to include whether or not the Veteran has tinnitus. The examiner is requested to respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that Veteran's preexisting hearing loss increased in severity during his active duty service? If so, was the increase beyond the natural progression of the disorder? It is requested that the examiner comment on the entrance and discharge audiological examinations (to include discussion of whether the reports were in ISO (ANSI) units or ASA units). (b) If the Veteran has tinnitus, is it at least as likely as not (a 50% or higher degree of probability) that the tinnitus is causally related to tinnitus reported by the Veteran during combat service (and therefore conceded)? Detailed reasons for all opinions should be provided. It is requested that the examiner's responses be in the same language as used in the above sub-paragraphs (a) and (b) ("at least as likely as not"). 3. For the purpose of avoiding further remand, the RO should review the examination report/opinion to ensure that it is responsive to the above directives. If not, the RO should return the report/opinion to the examiner for an addendum. 4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. 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). _________________________________________________ ALAN S. PEEVY 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).