Citation Nr: 1339128 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-19 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1971 to February 1980 and from December 1990 to May 1991. The Veteran had additional service in the National Guard and Reserves. This case comes before 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 Winston-Salem, North Carolina. The Board notes that in addition to the paper claims file there is an electronic "Virtual VA" file that was also reviewed to ensure complete analysis of the evidence of record. 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 that service connection is warranted for bilateral hearing loss (BHL) disability and tinnitus because they are related to in-service acoustic trauma from jet engine noise. Service treatment records reflect, in pertinent part, annual flight examinations in June and October 1979 and a separation examination in November 1979 that showed hearing loss of the left ear, as defined by VA regulation. A hearing conservation data report in October 1979 showed hearing loss of the right ear, as defined by VA regulation. The Veteran also complained of ringing in the right ear in October and November 1979. The Veteran was afforded a VA-contracted audiological evaluation in April 2010 in which he reported hearing loss and tinnitus starting in 1978. He also reported the aforementioned in-service noise exposure and noise exposure after service in a commercial jet, with hearing protection. The examiner noted review of service treatment records, with the oldest report listed from 1986. The examiner opined that the Veteran's hearing loss was less likely as not a continuation of the hearing loss indicated during military service and that tinnitus was at least as likely as not associated with hearing loss. The examiner furthered that the Veteran's hearing thresholds while in service were poorest in the 1990's through 1998 but improved in 1999 and the early 2000's prior to his discharge in 2002. The examiner also commented on the Veteran's noise exposure after service, starting in 1997 with commercial aircraft engine noise. The Board finds that a new examination and opinion are necessary because the basis of the April 2010 opinion is inadequate. Namely, the examiner's opinions appear to be based on limited review of the evidence of record at best. Specifically, the examiner did not adequately consider the Veteran's statements that his hearing loss and tinnitus began during active service in 1978 and that he wore hearing protection after service when working with commercial jets. The examiner also failed to discuss the aforementioned service treatment records in 1979 that showed bilateral hearing loss per VA regulations and complaints of tinnitus. Because the rationale for the VA-contracted medical opinion does not reflect that it was based upon a comprehensive review of all of the evidence of record, the opinion is inadequate. 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). 2. Schedule the Veteran for a VA or VA-contracted audiology examination with a different examiner than the one who conducted the April 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 the aforementioned service treatment records in 1979 that showed bilateral hearing loss per VA regulations and complaints of tinnitus. 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. 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).