Citation Nr: 1338920 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-13 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active duty from June 1973 to June 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his spouse testified before the undersigned during a Travel Board hearing at the RO in December 2012; a transcript of the hearing is associated with the 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 Board finds remand necessary for additional medical inquiry. The Veteran underwent a VA audiometric examination in July 2010 in which the VA examiner noted that audiometric thresholds were within normal limits at enlistment in 1973; an audiogram in November 1976 showed a mild to severe hearing loss 500 to 6000 Hertz bilaterally; a follow-up audiogram in December 1976 showed a mild hearing loss 4000 to 6000 Hertz bilaterally; and a separation audiogram in 1977 showed hearing within normal limits bilaterally with thresholds the same or better than at enlistment. The examiner opined that the Veteran's hearing was within normal limits and no threshold shifts occurred between enlistment and separation examinations; the hearing loss and tinnitus were less likely than not related to his military service. The Board finds that a new examination and opinion are necessary because the basis of the July 2010 opinion is inadequate. Namely, the examiner noted hearing loss that was reported in service after the enlistment examination but then stated that no threshold shifts occurred between enlistment and separation. The Board finds that this line of reasoning is not supported by the evidence of record. Moreover, the examiner based the opinion on the lack of evidence indicating a hearing loss disability during service. See 38 C.F.R. § 3.385. As the examiner noted, the separation audiometric test indicated normal hearing sensitivity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). As noted in Hensley, however, the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley, 5 Vet. App. at 159. A VA examiner must base an opinion on not only what was evident during service, but also on what has happened since service. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims folder VA medical records pertaining to any treatment the Veteran may have received since the issuance of the last supplemental statement of the case (SSOC) in May 2012. 2. Schedule the Veteran for a VA audiology examination with a different examiner than the one who conducted the July 2010 examination. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to provide opinions as to the following: is it at least as likely as not likely that the Veteran's current hearing loss disorder is related to any in-service disease, event, or injury; is it at least as likely as not likely that the Veteran's current tinnitus is related to any in-service disease, event, or injury. In answering these questions, please consider the evidence of record documenting that the Veteran was exposed to acoustic trauma during his military service and experienced documented hearing changes in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Please note that the term "as likely as not likely" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Please also note that the absence of a measured hearing loss alone during service cannot serve as the sole basis for finding that a current hearing loss disability is not related to service. The opinion must not only be based on what was evident during service, but also on what has happened since service. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the claims on appeal. If a benefit sought on appeal remains denied, the Veteran and his representative should be provided with an SSOC. Allow an appropriate period of time for response. By this remand, the Board intimates no opinion as to the ultimate outcome of this case. 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). _________________________________________________ MICHAEL A. PAPPAS 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).