Citation Nr: 1335878 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-36 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to September 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. These matters were previously remanded in October 2010, January 2012, and November 2012 for further development. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, a remand is again required of the claims for service connection for bilateral hearing loss and tinnitus. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claims so that he is afforded every possible consideration. In the November 2012 Remand, the Board remanded for further development, specifically directed the RO to provide the May 2012 VA audiologist with the claims folder to provide a supplemental opinion as to whether or not it was at least as likely as not that the Veteran's current hearing loss had onset during service or was related to noise exposure in service. The Board further directed that should the May 2012 VA examiner not be available to provide a supplemental opinion, to schedule the Veteran for a new audiological examination. A VA audiologist, responding to the November 2012 remand directives, provided a supplemental opinion regarding the Veteran's bilateral hearing and tinnitus conditions on December 2012. However, it is clear from the record that the VA audiologist that provided the December 2012 supplemental opinion is not the same VA audiologist that conducted the May 2012 VA audiological examination. Nor did the December 2012 VA audiologist conduct a new audiological examination of the Veteran, but merely reviewed two previous VA examination reports and the claims file. The Board finds lack of substantial compliance with remand directives, and therefore another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Thus far, two VA examiners have provided negative nexus opinions in this matter on the basis that there was no showing of hearing loss during the Veteran's period of active service. However, the Veteran's separation examination, in August 1966, included audiometric testing which disclosed pure tone thresholds, in decibels, as follows: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). To facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 10 (20) 5 (15) Not tested 5 (10) LEFT 15 (30) 15 (25) 5 (15) Not tested 10 (15) Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). While the in-service audiometric findings did not meet the thresholds required for a VA disability under the regulations, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels are indicative of some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, the examiners' conclusion that there was no evidence of in-service hearing loss was based on an inaccurate assessment of the record. Reonal v. Brown, 5 Vet. App. 458 (1993). Therefore, the Board finds that remand is needed for an additional examination concerning the Veteran's hearing loss and tinnitus disabilities. Since development may also impact the claim for service connection for tinnitus, any action on that claim must be deferred pending the completion of that development. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board further requests that in the event that the examiner finds that the Veteran's hearing loss is related to service, the examiner should also offer an opinion as to whether any tinnitus is related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The examiner must review the claims file and must note that review in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that hearing loss or tinnitus had its onset during service, or within one year following separation from service, or is related to any in-service disease or injury, including noise exposure in service. The audiologist should acknowledge the evidence of hearing loss at the time of the Veteran's separation from service, the lay testimony of record regarding the Veteran's in-service exposure, and opinions concluding that post-service occupational and recreational noise exposure was more likely the cause of the Veteran's hearing loss than in-service exposure. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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).