Citation Nr: 1336291 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-32 763 ) 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, to include as secondary to bilateral hearing loss. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to May 1974 and from December 1977 to July 1979. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The evidence reflects that the Veteran was exposed to acoustic trauma during service, and, at a December 2011 VA examination, he demonstrated bilateral hearing loss for VA purposes and was diagnosed with tinnitus. The December 2011 examiner opined that the Veteran's bilateral hearing loss and tinnitus were not the result of his in-service noise exposure. In providing these opinions, the examiner opined that the Veteran's tinnitus was secondary to his bilateral hearing loss rather than due to in-service noise exposure, and noted that the Veteran demonstrated "normal auditory thresholds" upon in-service audiometric testing. First, it appears that the examiner's opinion were based on inaccurate factual premises. Specifically, in the December 2011 VA examination report, the examiner alluded to a December 1977 audiogram, and stated that this took place three years after the Veteran's separation from service. However, the service records reflect that the Veteran had two periods of active duty, and the December 1977 audiogram was completed in connection with the second period. Also, contrary to the examiner's notation that the Veteran demonstrated "normal" hearing during his service, audiometric testing results from the Veteran's second period of active duty show hearing thresholds above 20 decibels, which indicate some degree of hearing loss. 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In light of above, the Board concludes that the examiners opinions are inadequate for the purpose of adjudicating the Veteran's claims, and thus, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, in light of the examiner's statement that the Veteran's tinnitus is related to his bilateral hearing loss, the Board has expanded the Veteran's claim to include the theory of secondary service connection. He has not been apprised of the elements necessary to substantiate a claim under this theory of entitlement. This should be accomplished on remand. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send the Veteran a notice letter which includes an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. The RO/AMC should refer the Veteran's claims file to the December 2011 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology the Veteran's bilateral hearing loss and tinnitus. 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 assertions. Thereafter, the examiner must address the following: a. Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's bilateral hearing loss is related to either period of service, to specifically include the Veteran's in-service exposure to combat artillery. b. Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's tinnitus is related to either period of service, to specifically include the Veteran's in-service exposure to combat artillery. c. If it is determined that the Veteran's bilateral hearing loss is related to either period of service and his tinnitus is not related to either period of service, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's tinnitus is caused or aggravated by his bilateral hearing loss. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner should note that hearing thresholds above 20 decibels indicate some degree of hearing loss. Also, the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 3. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. 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). 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).