Citation Nr: 1336066 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-04 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1968. This case comes before 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 St. Louis, Missouri. The Board has reviewed both the physical claims file and the Virtual VA electronic claims file. 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 he is entitled to direct service connection for a hearing loss disability and tinnitus as a result of exposure to hazardous noise during his active service in construction utility. The Board remands the claims on appeal for additional development because the VA medical examiner's opinion is inadequate. "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate medical opinion must consider all relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It must consider the veteran's prior pertinent medical history and must also include clear conclusions, supporting data, and a reasoned medical explanation. Barr v. Nicholson, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, it must consider all raised theories of entitlement. Stefl, 21 Vet. App. at 120. Service treatment records (STRs) contain audiograms from both the Veteran's February 1966 induction and January 1968 separation examinations. Without converting the 1966 induction examination audiogram from American Standards Association (ASA) values to International Standards Organization-American National Standards Institute (ISO (ANSI)) units, it shows values between 0 and 15 at all tested frequencies. After conversion to ISO (ANSI) units, however, the audiogram appears to show that the Veteran had hearing impairment in his right ear and a left ear hearing disability upon induction into service. For the right ear, the audiogram shows decibel level thresholds of 30 at 500 Hertz (Hz) and 25 at 1,000 Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is between 0 and 20 decibels, while anything above 20 decibels indicates some degree of hearing loss). For the left ear, the audiogram shows decibel level thresholds of 40 at 500 Hz and 25 at both 1,000 and 2,000 Hz. 38 C.F.R. § 3.385 (2013). His 1968 separation examination audiogram shows that he had decibel level thresholds of 5 at 500 Hz, 1,000 Hz, and 2,000 Hz in both ears. In November 2010, a VA medical examiner diagnosed the Veteran with normal to moderately severe bilateral sensorineural hearing loss and tinnitus and opined that his tinnitus was as likely as not a symptom of his bilateral hearing loss and that both are less likely as not caused by or a result of military noise exposure. The rationale was that the Veteran had served for two years as a combat engineer and his hearing was within normal limits upon separation from service. Regarding the Veteran's claim for bilateral hearing loss, the VA examiner's opinion is inadequate because the VA examiner failed to consider prior pertinent evidence and did not provide an opinion regarding possible aggravation. The VA examiner did not address the post-conversion right ear decibel level thresholds above 20; the post-conversion left ear decibel level threshold of 40 from the Veteran's 1966 induction examination; or the shift in decibel level thresholds between the 1966 and 1968 audiograms. Consequently, the VA examiner's opinion did not address whether the Veteran's preexisting right ear hearing impairment and left ear hearing disability increased in severity, during his military service and, if so, whether there is clear and unmistakable evidence that any such increase in service was due to the natural progress of his disease or otherwise not due to his active service. Further, the November 2010 VA examination, as noted, concluded that the Veteran's current hearing loss was not related to any in-service acoustic trauma because his separation examination showed normal hearing sensitivity at the time of discharge. An opinion that bilateral hearing loss is not related to service solely because it did not manifest in service is not an adequate explanation for why hearing loss is not related to in-service noise exposure. In that regard, whether or not the Veteran's service treatment records show bilateral hearing loss during service, service connection can still be established if medical evidence shows that the current hearing loss is actually due to incidents during service. 38 C.F.R. § 3.303(d) (2013); see also Hensley v. Brown, supra. Regarding the Veteran's claim for service connection for tinnitus, the VA examiner's opinion is inadequate because the VA examiner did not address prior pertinent medical evidence, including the post-conversion results of the 1966 audiogram, or the Veteran's lay testimony regarding the onset of his tinnitus. In addition, the Board notes that a lack of a permanent worsening or significant threshold shift in hearing during military service is not a sufficient basis on which to deny a claim for service connection for tinnitus, as the Veteran is competent to state that he experiences tinnitus, and to describe how long he has experienced tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Board has no discretion and must remand this matter for another medical opinion as to whether the Veteran's current hearing loss disability preexisted his active service and was aggravated (permanently worsened beyond its normal progression) by his active service. In the alternative, the VA examiner should indicate the likelihood that any hearing loss or tinnitus had its onset during the Veteran's military service Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran with an addendum opinion by the same VA examiner or, if unavailable, from another VA audiologist, to clarify whether the Veteran's hearing impairment upon induction into service was aggravated (permanently worsened) due to his active service and to determine the likelihood that the Veteran's tinnitus is etiologically related to his military service. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA/VBMS that is not already in the claims file. The examiner should review the claims file and provide an opinion, based on examination results and the record, and address the following: (a). whether the Veteran's preexisting hearing impairment increased in severity during service and, if so, whether there is clear and unmistakable (undebatable) evidence that the increase in severity was due to the natural progress of the disease or otherwise not caused by the Veteran's active service. (b). whether the Veteran's tinnitus had its onset in military service or is otherwise etiologically related to the Veteran's military service. In answering these questions, the audiologist should take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure, the onset of hearing loss and tinnitus, and continuity of hearing loss since service. [Note: The Veteran's in-service noise exposure has been conceded]. The examiner should also consider the objective medical findings in the service treatment records. The audiologist should also convert any audiometric results using ASA standards to ISO-ANSI standards as appropriate in order to facilitate data comparison and discuss all in-service audiograms when forming his/her opinion. The examiner is advised that the absence of in-service evidence of hearing loss including on separation examination 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 it is the opinion of the examiner that the Veteran's tinnitus is the result of any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss and tinnitus. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 2. The RO or AMC should undertake any additional development it deems warranted. 3. Then, the RO or AMC should readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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). _________________________________________________ S. L. Kennedy 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).