Citation Nr: 1333482 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-12 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to August 1991, and his awards and decorations include the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A Board hearing was held before the undersigned Veterans Law Judge by videoconference from the RO in September 2011. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional evidence along with a written waiver of the RO's initial consideration. A review of the Virtual VA and VBMS electronic claims files does not reveal any additional documents pertinent to the present 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 The Board finds that further development is necessary prior to final adjudication of the Veteran's claims. In particular, the Board notes that the Veteran has not been afforded a VA examination in connection with his current claims. The Veteran contends that he has current hearing loss and tinnitus as a result of his duties as an infantryman during service, to include in combat, with limited post-service noise exposure. See, e.g., October 2009 notice of disagreement, September 2011 Bd. Hrg. Tr. at 5-7, 12. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was indirect fire infantryman and that he was awarded the Combat Infantryman Badge (CIB). The Veteran's service treatment records include audiological testing at entrance to service in October 1987 and a reference audiogram in October 1988; however, a separation examination was not performed. The Veteran has also reported limited post-service noise exposure. A March 2009 private audiological evaluation and June 2011 VA audiological evaluation do not reveal hearing loss as defined by VA standards under 38 C.F.R. § 3.385. Notably, while the VA report shows a word recognition score of 92 percent in each ear, the measurements were taken using the NU-6 word list rather than the Maryland CNC word list, as required under the regulation. The March 2009 report also shows a word recognition score of 100 percent in each ear, but the word list was unspecified. In a related September 2011 written opinion, the VA audiologist indicated that the Veteran's hearing loss on examination was unlikely due to age-related factors and that hearing loss and tinnitus were likely due to noise-related acoustic trauma. However, he did not provide audiometric findings showing that the Veteran has hearing loss as defined in 38 C.F.R. § 3.385. In light of the above, the evidence that the Veteran's current symptomatology may be related to his military service, thereby satisfying the low threshold for obtaining an examination as part of VA's duty to assist, as articulated in McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Veteran should be afforded a VA examination to determine whether he has current hearing loss and tinnitus related to his military service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any current bilateral hearing loss and tinnitus. Any studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral hearing loss and tinnitus manifested during or are otherwise related to his military service, including noise exposure therein. He or she should also address whether the Veteran's tinnitus is caused by or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that any current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ JESSICA J. WILLS 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).