Citation Nr: 1339411 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-15 258 ) 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking service connection for bilateral hearing loss and tinnitus. He attributes both of these disabilities to his inservice duties as a field artillery crewman. At his March 2013 hearing before the Board, the Veteran testified that while he was stationed in Vietnam, he performed fire direction control duties for an artillery battery consisting of five 105-millimeter howitzers. He testified that this battery conducted multiple fire missions on a daily basis. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013. The Veteran served on active duty in the Army from October 1965 to October 1967, including service in Vietnam. The Veteran's pre-induction examination, performed in August 1965, noted that his ears were normal. However, the authorized audiological evaluation at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) / 50 (55) LEFT 5 (20) 0 (10) -5 (5) / 50 (55) (Note: The August 1965 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). Impaired hearing for VA purposes will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Consequently, the Veteran's August 1965 preinduction examination revealed pre-existing bilateral hearing loss. Having established a pre-existing bilateral hearing loss disability, the next consideration is whether the pre-existing disability permanently increased in severity in service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). The Veteran's service treatment records are silent as to any complaints of hearing loss. A February 1966 treatment report noted that he underwent a left ear wash to treat left ear cerumen. The Veteran's separation examination was conducted in October 1967. The authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 (45) 40 (50) 60 (70) / / LEFT 30 (45) 40 (50) 60 (70) / / (The ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). The separation examination also included a repeat audiological evaluation, which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) 0 (10) 55 (65) 55 (60) LEFT 5 (20) 0 (10) 0 (10) 55 (65) 60 (65) (The ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). Finally, the examiner conducting the separation examination listed a diagnosis of bilateral high frequency hearing loss, and assigned a "3" to the "hearing and ears" portion of the Veteran's "PULHES" profile. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In June 2008, the Veteran filed his present claim seeking service connection for bilateral hearing loss and tinnitus. In September 2008, a VA audiological examination was conducted. An audiological evaluation was performed at that time and revealed findings of bilateral hearing loss disability as defined by VA in 38 C.F.R. § 3.385. The report listed diagnoses of normal sloping to severe bilateral sensorineural hearing loss and tinnitus. The VA examiner opined that it was "less likely than not" that the Veteran's current hearing loss was aggravated during his military service. In support of this opinion, the VA examiner noted that there was no significant threshold shift found on the Veteran's separation examination. After reviewing the evidence of record, the Board finds the September 2008 medical opinion to be inadequate. Specifically, the VA examiner failed to reference the fact that two audiological evaluations were conducted pursuant to the Veteran's separation examination. Moreover, a comparison of the Veteran's August 1965 pre-induction examination to both of the audiological evaluations shown on the Veteran's October 1969 separation examination revealed increased levels of hearing loss, as measured in decibels, at nearly every Hertz level tested. Finally, the hearing loss shown is particularly significant when comparing the audiological findings on the Veteran's separation examination and those noted on his preinduction audiological examination, including upward shifts of in excess of 40 decibels at the 500 hertz levels, and 65 decibels at the 2000 hertz levels. Under these circumstances, the Board concludes that a new VA audiological evaluation must be conducted to determine whether the Veteran's preexisting bilateral hearing loss permanently increased in severity in service; and if so, whether there is clear and unmistakable evidence that the permanent increase in severity was due to the natural progress of this condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran's claims seeking service connection for hearing loss and tinnitus are intertwined. Accordingly, development of the hearing loss issue is required prior to the Board rendering a final decision on the issue of entitlement to service connection for tinnitus. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is remanded for the following action: 1. Request that the Veteran identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for hearing loss and tinnitus since his discharge from the service. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate examination to determine whether any current bilateral hearing loss and/or tinnitus are related to his military service. The claims file and all pertinent electronic records must be made available to the examiner, and the examiner must indicate that these records have been reviewed. The examiner must note and convert, the ASA standards to ISO-ANSI standards for findings prior to November 1967. After a review of the entire evidence of record, the examiner must render an opinion, in light of the service and post service evidence of record, as to: (a) whether the Veteran's preexisting hearing loss underwent an increase in severity during service; and if so, whether the increase can be attributed to the natural progress of this disability; and (b) whether any degree of the Veteran's current tinnitus is related to his inservice noise exposure or if any degree of the Veteran's current tinnitus is due to or aggravated his bilateral hearing loss. The Veteran's military occupational specialty, his statements and testimony regarding the history of inservice and post service noise exposure, the objective medical findings upon entrance into and separation from his military service, which contains two audiological evaluations, post service audiological evaluations, and any other pertinent clinical findings of record, must be taken into account. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the evidence of record and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims remaining on appeal must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).