Citation Nr: 1333519 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-15 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to July 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, 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 The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran's service records show that he served as a Field Artillery Officer for 5 years and 6 months in the U.S. Marine Corps. His DD Form 214 further indicates that he received the Rifle Expert Badge (2nd award) and the Pistol Expert Badge (2nd award). At his January 1977 Pre-Commissioning Report of Medical Examination, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 15 LEFT 10 5 0 0 5 In November 1978, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 10 5 LEFT 20 5 5 5 10 In February 1979, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In May 1979, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 10 LEFT 0 0 0 0 0 At the Veteran's April 1983 separation examination, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran was provided a VA audiological examination in September 2010, at which time he was diagnosed as having severe sensorineural hearing loss from 3000 hertz to 4000 hertz in the right ear and moderately-severe-to-severe sensorineural hearing loss from 3000 hertz to 4000 hertz in the left ear, with reports of bilateral tinnitus since the 1980s. The examiner acknowledged that the Veteran reported military noise exposure in the form of artillery, tank, and engine noise during service, and that he denied any subsequent noise exposure during his civilian occupation in sales. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 70 85 LEFT 20 20 25 55 70 However, the examiner indicated that she was unable to determine whether bilateral hearing loss and tinnitus were due to or the result of military service without resorting to mere speculation because she was not provided the Veteran's claims file at the time of the examination. In an October 2010 addendum opinion, issued after having reviewed the Veteran's claims file, the September 2010 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to military service because a review of the enlistment and separation examinations failed to show a decline or worsening of hearing loss. Furthermore, the examiner additionally opined that tinnitus was less likely than not related to military service because there was no tinnitus reported in the service treatment records. The Board emphasizes that the VA examiner's October 2010 medical opinion was based on the enlistment and separation examinations failing to show a decline or worsening of hearing loss. However, the Board notes that the October 2010 opinion also indicated that, "No audiometrics in 1978 were found." As discussed above, there were indeed audiometrics from November 1978 which showed a decline or worsening of hearing loss. The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Two copies of these November 1978 audiometrics were included with the Veteran's service treatment records. In addition, with respect to tinnitus, the examiner failed to address or reconcile the Veteran's competent statements as to experiencing ringing in his ears since the 1980s. The Board emphasizes that the Veteran's military occupational specialty of Field Artillery Officer, as well as his training with rifles and pistols, is consistent with exposure to acoustic trauma in service. Consequently, the Board finds that the September 2010 VA audiological examination and the subsequent October 2010 addendum opinion are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). As such, a new VA opinion should be obtained which meaningfully addresses the issue of whether the Veteran's hearing loss and tinnitus were incurred in service, regardless of whether the hearing loss was shown to meet the provisions of 38 C.F.R. § 3.385 in service or on service separation. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that if hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service). The opinion should address all in-service audiometric testing, to include the audiometric results obtained in November 1978, and also address the Veteran's statement of experiencing ringing in his ears since the 1980s. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the VA examiner who conducted the Veteran's September 2010 VA audiological examination and ask that another addendum opinion be provided. Specifically, after a review of the entire evidence of record, and with consideration of the Veteran's previous statements, the examiner must render an opinion, in light of the service and post service evidence of record, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss is related to the Veteran's period of military service from May 1977 to July 1983, or to any incident therein, to include as due to military noise exposure. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any tinnitus had its onset in active service or was caused by or related to active service. The Veteran's military occupational specialty, the objective medical findings in the service medical records, the previous VA audiological evaluation currently of record, the Veteran's history of in-service and post-service noise exposure, and any other pertinent clinical findings of record, must be taken into account. The Veteran has contended that he had noise exposure in service and that he has experienced ringing in his ears since the 1980s. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. Importantly, the examiner must not base the required opinion solely on whether hearing loss was shown in service or on service separation. The examiner must specifically address the question of whether any degree of current hearing loss is a result of his military service or to any incident therein, to include as a result of in-service noise exposure, including consideration of any upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385. A complete rationale for all opinions must be provided. If the September 2010 VA examiner is unavailable, forward the Veteran's claims file to another VA examiner of the appropriate expertise in audiology for the requested opinion. After review of the claims file and a copy of this remand, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed bilateral hearing loss and tinnitus are caused by or otherwise related to his military service, to include military noise exposure. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims on appeal must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ 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).