Citation Nr: 1339917 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-00 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Luke McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for bilateral hearing loss and tinnitus. The Veteran testified before the undersigned at a March 2012 Board hearing, held by videoconference. A transcript of the hearing is of record. The Veteran also testified before a Decision Review Officer (DRO) at an October 2011 hearing at the Lincoln, Nebraska, RO. A transcript of the hearing is also of record. The Virtual VA paperless claims processing system contains additional VA treatment records that have been considered by the RO and the Board. 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 Veteran claims entitlement to service connection for a bilateral hearing loss disability and tinnitus as a result of acoustic trauma during service. For the following reasons, the Board finds that a new VA audiological examination is necessary to fully address the issues raised in this appeal and to ensure the appeal is ready for appellate review. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002)), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The duty to assist under the VCAA includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Such an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Further, "[e]xamination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion." Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The Veteran was provided two VA audiological examinations, in June 2010 and December 2011, neither of which is adequate to decide the Veteran's claims. See Barr, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). The June 2010 VA audiological opinion states that the hearing test results in the Veteran's service treatment records (STRs) were normal and, thus, that it was at least as likely as not that his hearing loss and tinnitus were due to factors other than military noise exposure. The VA examiner's June 2010 report and opinion do not identify the "exit audiogram" to which he referred. Specifically, the report is unclear as to whether it is referring to the Veteran's April 1965 separation examination, or his January 1968 examination for release from active duty (REFRAD). Furthermore, it is also unclear whether the examiner performed the requisite conversion on the Veteran's audiometric examinations in order to properly assess the data. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Afterwards, audiometric results standards were set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Audiometric results dated prior to November 1967 must be converted from ASA units to ISO units for proper comparison to the Veteran's subsequent test results. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, and 5 at 4000 Hz. Thus, because the requisite conversion was not performed and it is unclear which set of audiometric data the examiner relied upon, the June 2010 audiological examination is inadequate to decide the claims. The December 2011 VA audiologist's etiological opinion that the Veteran's hearing loss and tinnitus is less likely than not related to military noise exposure is also inadequate. The audiologist based her determination that that the Veteran's service treatment records did not reveal "a significant threshold shift at any frequency in either ear over the course of military service" upon a comparison of the Veteran's entrance and separation exams. To facilitate this comparison, the examiner explained that she converted the Veteran's June 1963 audiogram data from ASA to ISO units. Noting that one could expect a threshold change to vary from test to test by as much as 10 decibels, the audiologist determined that the Veteran's hearing did not decrease more than 10 decibels from entrance to separation at any ratable frequency. However, the opinion is unclear as to the specific "separation examination" to which the converted June 1963 audiometric data was compared, the Veteran's April 1965 examination upon separation active duty or his January 1968 REFRAD examination. It is therefore unclear whether the audiologist considered the Veteran's April 1965 audiological data, which would require conversion from ASA to ISO units for proper comparison to the June 1963 audiometric data. As converted, the June 1963 audiogram shows puretone thresholds, in decibels, as follows (in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT (15) 30 (- 5) 5 (- 10) 0 (- 10) 0 (5) 10 LEFT (15) 30 (- 5) 5 (- 5) 5 (5) 15 (5) 10 As converted, the April 1965 audiogram shows puretone thresholds, in decibels, as follows (in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT (5) 20 (10) 20 (5) 15 - (10) 15 LEFT (20) 35 (5) 15 (10) 20 - (5) 10 Upon correction, the pre-service and in-service audiometric examinations evidence some hearing loss in April 1965, contrary to the December 2011 audiologist's finding of no significant shift during service. Specifically, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three 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. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection and do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 157, 159. When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. Because the puretone thresholds at 1000 Hz. increased from 5 and 5 decibels in June 1963 to 20 and 15 decibels in April 1965, respectively, and because the thresholds at 2000 Hz. increased from 0 and 5 decibels to 15 and 20 decibels, they show that the Veteran did have some hearing loss, contrary to the VA examiner's finding of no significant shift in hearing during service. See id. at 159 (stating that an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores may be established despite hearing found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service). Therefore, on remand, a new VA audiological examination should be conducted to assess the likely etiology of the Veteran's bilateral hearing loss and tinnitus. In formulating the opinion, the examiner should comment upon the significance, if any, of the upward shifts in the Veteran's pure tone thresholds in the April 1965 separation audiometric examination compared to the June 1963 pre-service audiogram. See id. at 158-160 (discussing the criteria for evaluating the significance of a shift in puretone threshold). Finally, any recent VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records for hearing loss and tinnitus, dated since December 2011. 2. After the foregoing development has been completed, schedule the Veteran for a VA audiological examination. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the hearing examiner. The examination report must reflect that such a review was undertaken. After reviewing the file and examining the Veteran, the examiner should provide an opinion as to whether the Veteran's bilateral hearing loss and tinnitus are at least as likely as not (i.e., to at least a 50:50 degree of probability) a result of his in-service noise exposure, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). In providing this opinion, the examiner should consider the Veteran's complaints of continuity of hearing loss and tinnitus symptoms since service. The examiner should also discuss the results of the Veteran's June 1963 entry examination and his April 1965 separation evaluation, and state whether a comparison of the audiometric results indicates a significant puretone threshold shift. In this regard, the examiner should note that audiometric results dated prior to November 1967 must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) units for proper comparison, as shown in the body of this remand above. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for the opinion reached. 4. Next, review the VA audiological examination report to ensure that the opinion provided is adequate. The case should be returned to the examiner if all questions posed in this REMAND are not answered. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). ____________________________________________ P. M. DILORENZO 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).