Citation Nr: 1339941 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 13-23 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from June 1960 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied service connection for hearing loss. The Veteran initiated an appeal only as to the denial of service connection for bilateral hearing loss by filing a notice of disagreement (NOD) in October 2011, and after an August 2013 statement of the case (SOC) the appeal was perfected by filing a substantive appeal, VA Form 9 (appeal to the Board of Veterans' Appeals) later that same month. 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 Unfortunately, the Board's review of the claims file reveals that further development in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on the matter remaining on appeal. The Veteran's service treatment records (STRs) show that he was not afforded audiometric testing of his hearing acuity on examination in June 1960 for entrance into active service but his hearing of the whispered voice and spoken voice was 15/15 in each ear. In March 1961 he complained of left ear pain but he had no fever or discharge from that ear. On examination there was no build up of ear wax and his ear drum was normal. The impression was that the examination was normal. The Veteran's audiometric testing at his March 1962 examination for discharge from active service revealed that his auditory threshold levels, in decibels, at pertinent frequencies were as follows: Hertz 500 1000 2000 3000 4000 Right Ear 0 (15) 5 (15) 5 (15) Not tested 15 (20) Left Ear 5 (20) 5 (15) 5 (15) Not tested 10 (15) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those 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.) The Veteran's service personnel records show that he was assigned to an artillery unit. His military occupational specialty, as listed on his DD 214, was field communications crewman. In an attachment to the Veteran's November 2010 claim for compensation benefits he reported that he had served in communications during service and was exposed to high frequency sounds without the benefit of ear protection. After service he had had noise exposure but ear protection was mandatory. On VA audiometric testing in April 2011 the Veteran's auditory threshold levels, in decibels, at pertinent frequencies were as follows: Hertz 500 1000 2000 3000 4000 Right Ear 20 25 20 60 60 Left Ear 20 25 20 65 65 The examiner noted that the Veteran reported having had been exposed to artillery noise during service as a field communications crewman. He had had bilateral, intermittent, tinnitus beginning in May 1962. He had worked on the Ford assembly line for 33 years but wore ear protection. Audiometric testing revealed a bilateral sensorineural hearing loss. The examiner reported that the Veteran's tinnitus was consistent with tinnitus caused by acoustic trauma and since his timeline linked the onset of tinnitus to military service and with the favorable resolution of doubt, it was as least as likely as not caused by acoustic trauma during military service. However, as to the claim for service connection for bilateral hearing loss it was stated that, after a review of the claim file, the Veteran's exposure to inservice noise exposure was verified but the STRs did not document that such exposure had a negative impact on the Veteran's hearing acuity. It was stated that In fact, the C [claim] file documents the military noise exposure did not cause hearing loss during military service. There was no significant decrease in auditory thresholds beyond normal progression and test retest variability. All hearing tests in the SMR [service medical records] document normal hearing with no evidence of tinnitus. The basis of the denial of service connection was that although the Veteran had a hearing loss for VA purposes, under 38 C.F.R. § 3.385 (2012), there was no medical link between the Veteran's current hearing loss and military service, in the absence of which, service connection was not warranted. In the Informal Hearing presentation, contained in the paperless, electronic (Virtual VA) claims file, it was argued that the opinion was inadequate inasmuch as no audiometric testing was done at separation upon which it could be concluded that comparably there was no progression or diminution of hearing acuity. However, the Board observes that audiometric testing was not done at service entrance but was done at service separation, albeit the Veteran's hearing acuity at service separation was normal, by VA standards (see 38 C.F.R. § 3.385), at separation. On the other hand, this argument appears to be that, because there was no audiometric testing at service entrance, there could be no comparison of threshold levels at entrance and at discharge to determine whether any changes in threshold levels were indicative of hearing loss, even if the VA standards for hearing loss were not met. In any event, the Board concurs with the contention in the Informal Hearing Presentation that the mere fact that no hearing loss was shown in the STRs is not fatal to the claim. See Hensley v. Brown, 5 Vet. App. 155 (1993). Moreover, based on the examiner's opinion that inservice noise exposure together with the Veteran's reported history of tinnitus beginning during service, was sufficient to establish that tinnitus was of service origin, it is not clear why this same potential etiology (noise exposure) was not sufficient to establish that the current hearing loss was related to military service since it appears that the Veteran at least alleges that his hearing loss is of service origin. This is particularly true in light of the fact that the report of the VA examination specifically stated that the Veteran's tinnitus was as likely as not a symptom associated with the current hearing loss. Consequently, clarification of the examiner's opinion is required. Further, to ensure that all due process requirements are met, the RO\AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). It should be specifically requested that the Veteran provide authorization to obtain any outstanding private medical records, including those from any private physician(s) who had treated or evaluated him as to the hearing loss or tinnitus, if such records as to the latter are relevant to the claim for hearing loss. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for hearing loss, if such records as to the latter are relevant to the claim for hearing loss, that is not currently of record. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The RO\AMC should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses should be associated with the claim file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further actions(s) to be taken. The records obtained should be associated with the claim file. 3. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, return the claim file to the April 2011 VA examiner for clarification as to why, if the Veteran's tinnitus is a symptom of his hearing loss as stated in the 2011 examination report and due to inservice acoustic trauma, based upon review of the record and consistent with sound medical principles the hearing loss is not also at least as likely as not (i.e., there is a 50 percent or greater probability) of the same etiology as the tinnitus, i.e., inservice noise exposure. If the 2011 VA examiner is not available, the claim file should be reviewed by another audiological specialist for the requested opinion. In expressing any clarification, the examiner is reminded that the mere fact that audiometric testing at service discharge did not reveal a hearing loss by VA standards, set forth at 38 C.F.R. § 3.385, is not a basis for denial of the claim. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. 4. To help avoid future remand, the RO\AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining any further opinion, if appropriate), the RO\AMC should adjudicate the claim in light of all pertinent evidence (particularly, that added to the claim file since the last adjudication of the claim). 6. If the benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claim file is returned to the Board for further appellate consideration. 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). _________________________________________________ WAYNE M. BRAEUER 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) (2012).