Citation Nr: 1340648 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-18 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1969 and from January 1991 to May 1991. He additionally had service with the United States Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the appeal for further evidentiary development in February 2010 and April 2012. Additional appeals pertaining to an increased disability rating for posttraumatic stress disorder and service connection for a bilateral foot disability were disposed of in the interim. 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 on his part. The issue of entitlement to an increased disability rating for service-connected callous formations of the feet has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See January 2013 statement from Veteran. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND The Board's prior remands of the Veteran's hearing loss and tinnitus claims on appeal have focused on affording the Veteran an adequate VA examination to determine the nature and etiology of diagnosed hearing loss and tinnitus disabilities. In a May 2012 VA audiological examination, the Veteran reported recurrent tinnitus, and he was found to have left ear hearing loss for VA purposes. See 38 C.F.R. § 3.385 (2013). After examining the Veteran, the VA examiner provided the opinion that the Veteran's hearing loss was not at least as likely as not caused by or a result of his service. The examiner noted that the Veteran had hearing within normal limits during his active service and that two audiograms pertaining to his Reserve service revealed only mild hearing loss, insufficient to warrant a disability for VA purposes, in the left ear. The examiner did not provide reasons as to why a prior normal examination precluded a finding that current hearing loss was related to reported in-service hazardous noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Similarly, with respect to the Veteran's claimed tinnitus, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. Here, the examiner noted that there was no complaint of tinnitus in the Veteran's claims folder, and that hearing was within normal limits for all ratable frequencies. The examiner did not appear to address the Veteran's contention that tinnitus began gradually during service, but that he did not report it for fear of repercussions on his military career. See id. Moreover, the May 2012 VA examiner did not appear to consider whether the Veteran's hearing loss and tinnitus could be related to his claimed in-service hazardous noise exposure on a delayed/latent onset basis. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (noting that when a veteran is not shown to meet the regulatory requirements for establishing a "disability" for hearing loss at the time of separation from active service, service connection for a current hearing disability may be established by evidence that the current disability is causally related to service). Accordingly, remand is required in order to afford the Veteran a new VA audiological examination to determine his current level of hearing impairment and to obtain a new opinion regarding the etiology of his hearing loss and tinnitus. Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for a new VA audiological examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report bilateral auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include the Veteran's reported hazardous military noise exposure. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its clinical onset during active service, or is related to any in-service disease, event, or injury, to include the Veteran's reported hazardous military noise exposure. In providing this opinion, the examiner should comment specifically on the effect, if any, of the Veteran's reported hazardous military noise exposure on the development of his diagnosed hearing loss. The examiner must also discuss the likelihood that the Veteran's hearing loss is due to in-service hazardous noise exposure on a delayed or latent onset theory of causation. The examiner must provide a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Then, readjudicate the issues on appeal. If the full benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ James L. March 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. See 38 C.F.R. § 20.1100(b) (2013).