Citation Nr: 1335435 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-09 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from November 1976 to November 1980 and December 1980 to December 1982, and in the Coast Guard from July 1983 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for entitlement to service connection for hearing loss and tinnitus. 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 Reason for Remand: To obtain a comprehensive VA medical opinion. The Veteran contends that he suffers from bilateral hearing loss and tinnitus which are directly related to his military service. Specifically, he asserts that he was exposed to damaging noise while serving as a forward observer with an artillery unit. Acoustic trauma during service is conceded. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.303(a) (2013) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The Veteran's bilateral hearing loss was the subject of a VA audiology examination for compensation purposes conducted in June 2010. At the exam, the Veteran reported bilateral hearing loss with onset around 1979. He stated that his wife started to notice problems and complained about hearing loss, and that he had to ask people to repeat themselves. He also reported that his hearing loss has gradually gotten worse over the years. The Veteran gave a history of serving in the Marines from 1976-1982, where he experienced excessive noise as a forward observer with an artillery unit. He stated that he wore hearing protection while firing. He also said he served in the Coast Guard from 1983-1988, where he worked in search and rescue and was exposed to engine room noise with hearing protection. The Veteran denied a history of civilian recreational noise exposure, and stated that in 2004, he worked as a civilian for a cabinet-building company with hearing protection. He also denied a history, family history or ototoxic drug history of hearing loss, and attributed his hearing loss to his tenure in the military. The VA examiner reviewed the claims file and noted that audiometric data indicated normal hearing bilaterally from 500-6000 Hz in December 1982 and May 1984, and normal hearing bilaterally from 250-8000 Hz in June 1987 and October 1988. She also noted that there were no complaints of hearing loss or tinnitus in the service medical records. The VA examiner concluded that due to normal hearing bilaterally at separation in October 1988, no complaints of hearing loss or tinnitus in the service medical records, and onset of tinnitus in 2000, it is not at least as likely as not that hearing loss or tinnitus is related to military service. The VA examiner's opinion is inadequate because she did not to provide a well-supported rationale for her conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Specifically, service connection for hearing loss is not precluded where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. On remand, the VA examiner should be advised that the absence of in-service evidence of hearing loss is not fatal to a claim for that disability; rather, a positive nexus opinion may be found with a showing of a current hearing loss disability and a medically sound basis for attributing such disability to service. Because VA undertook to provide a VA examination to evaluate the claimed hearing loss, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the Board finds that a supplemental opinion is warranted. The AMC/RO should arrange for the Veteran to undergo additional VA examination only if the audiologist who provided the June 2010 opinion is not available, or the designated audiologist is unable to provide the requested opinion without examining the Veteran. Finally, the Board finds that the Veteran's claim of entitlement to service connection for tinnitus is inextricably intertwined with his claim of service connection for bilateral hearing loss. Therefore, the tinnitus issue is held in abeyance pending completion of the development discussed in this Remand. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the audiologist that provided the June 2010 opinion, if available, for a supplemental opinion. The claims folder must be made available to the audiologist for review of the case. A notation to the effect that this record review took place should be included in the report of the audiologist. a. The audiologist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has current bilateral hearing loss which was incurred or aggravated as a result of disease or injury incurred during active duty. b. The audiologist is advised that, for purposes of rendering this opinion, the Board finds the Veteran's reports of in-service noise exposure to be credible. The audiologist must consider and address the Veteran's lay statements describing his in-service noise exposure in rendering the opinion (discussed above). c. The complete rationale for all opinions expressed should be set forth in the examination report. The examiner is advised that the absence of in-service evidence of hearing loss is not fatal to a claim for that disability; rather, service connection may be found with a showing of a current hearing loss disability and a medically sound basis for attributing such disability to service. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and a notation to the effect that review of the claims file took place should be included in the report of the examiner. The examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. Thereafter, the RO should readjudicate the claims. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case and 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 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. 2013). _________________________________________________ KATHLEEN K. GALLAGHER 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).