Citation Nr: 1338457 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-08 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, 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 David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, in pertinent part, denied service connection for bilateral hearing loss and tinnitus. In his notice of disagreement, dated in October 2010, the Veteran requested a personal hearing before a Decision Review Office (DRO) at the RO. The hearing was scheduled for December 2011. However, when the Veteran appeared, he and his representative elected to have an informal conference with the DRO in lieu of a formal hearing. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND The Veteran seeks to establish service connection for bilateral hearing loss and tinnitus. He maintains that both conditions can be attributed to in-service exposure to noise from heavy weapons during basic training. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA regulations provide that impaired hearing will be considered a "disability" when the auditory threshold is 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 hertz, where it is 26 decibels or greater in at least three of these frequencies, or where speech recognition scores under the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2013). In the present case, the evidence establishes that the Veteran has been diagnosed with tinnitus. The evidence also establishes that he has a current, legally cognizable hearing disability of each ear. Although not all of the available evidence supports such a finding (data from a VA fee basis examination in December 2011 fail to demonstrate the presence of a right ear hearing disability, as defined by 38 C.F.R. § 3.385), the evidence obtained during the pendency of the Veteran's claim includes a February 2010 VA examination report which reflects that he was found to have auditory thresholds of 40 decibels at 3000 hertz, bilaterally. Nothing in that report suggests that there were any irregularities in testing. Therefore, it appears that the requirement of a "current disability" has been satisfied. See, e.g., McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a "current disability" is satisfied when a claimant is shown to have a disability either "at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . .") (emphasis added). The evidence also establishes that the Veteran was very likely exposed to noise during service. The Veteran has asserted such exposure, and his military occupational specialty (MOS) (Air Defense Artillery Officer) has been recognized as one in which exposure to noise is "highly probable." See Veterans Benefits Administration Fast Letter 10-35 (Sept. 2, 2010). The real question here is whether there is a nexus, or link, between the Veteran's hearing disability and/or tinnitus and his in-service exposure to noise. Thus far, two examiners have opined, in effect, that is unlikely that military noise exposure caused, or has contributed to, the Veteran's hearing loss and tinnitus. See examination reports dated in April 2010 and December 2011. In support of that conclusion, the examiners have noted that the Veteran's hearing was within normal limits, bilaterally, at the time of his service separation examination in 1977. When the Veteran was examined for active duty enlistment in October 1975, his auditory acuity was assessed on the basis of spoken voice testing alone. As such, it is not possible to compare audiometric data from the time of his examination for enlistment to that from the time of his examination for separation. The Board notes, however, that the Veteran underwent a Reserve Officers' Training Corp (ROTC) examination in June 1974-approximately 16 months prior to entering onto active duty. Audiometric testing at that time revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 -- 20 LEFT 10 0 0 -- 20 Subsequently, when the Veteran was examined for separation from active duty in September 1977, the following results were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 -- 5 LEFT 15 0 10 -- 0 As noted by the two examiners who have offered opinions as to nexus, the Veteran's auditory acuity was, in fact, within normal limits, bilaterally, at the time of his separation from service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that thresholds above 20 decibels are indicative of at least some degree of hearing loss). Notably, however, comparison of the audiometric data obtained in June 1974 to that obtained at separation reveals an upward shift in auditory thresholds at 500 and 1000 Hertz in the right ear, and at 500 and 2000 Hertz in the left ear. Neither of the examiners who have thus far examined the Veteran has expressly discussed the significance, if any, of these upward shifts. As such, a new examination is required. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the reasons stated, this case is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an audiologist or ear, nose, and throat physician. After reviewing the claims file, examining the Veteran, and conducting audiometric and speech discrimination (Maryland CNC) testing of both ears, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran currently has, or at any time since October 2009 has had, a hearing disability of either ear, and/or tinnitus, that can be attributed to service, to include any in-service exposure to noise. In so doing, the examiner should specifically discuss the medical significance, if any, of the upward shift in auditory thresholds at 500 and 1000 Hertz in the right ear, and at 500 and 2000 Hertz in the left ear, between June 1974 and September 1977. For purposes of analysis, the examiner should accept as fact that the Veteran was very likely exposed to noise during service. A complete rationale for all opinions must be provided. 2. After conducting any additional development deemed necessary, the claims file should again be reviewed. If any benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2013).