Citation Nr: 1342875 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-14 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to March 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND In February 2010, the Veteran submitted claims for entitlement to service connection for bilateral hearing loss and tinnitus. He asserted that his claimed disorders began during active service in 1993. The Veteran's lay statement reported that he worked onboard three different ships as part of gun mount crews, flight deck air operations, and a firefighting repair party that exposed him to naval gunfire, loud aircraft, and loud engine rooms. Service treatment records are negative for a history of hearing loss upon entrance into service. A June 1981 treatment record noted that the Veteran was exposed to gun fire and was positive for "noises in [his] ears." Throughout the Veteran's service he had numerous audiological examinations, to include hearing conservation program reports from 1981 to 1989. Hearing conservation data from December 1982 to September 1989 indicate a gradual worsening of the Veteran's hearing. The Veteran's left ear hearing acuity at 6000 Hertz shifted from 10 decibels in February 1981 to 30 decibels in February 1987 and right ear hearing acuity at 6000 Hertz shifted from 5 decibels in February 1981 to 20 decibels in September 1989. Notably, the Veteran's January 1985 and November 1990 treatment records reported left ear hearing acuity of 35 decibels at 500 Hertz. However, an April 1995 examination reported the Veteran's left ear hearing acuity was 15 decibels at 500 Hertz and 20 decibels at 6000 Hertz, and right ear hearing acuity was 5 decibels at 6000 Hertz. The Veteran's hearing acuity was within normal limits at the retirement examination. However, the Veteran's reported medical history upon retirement was positive for hearing loss. Service personnel records detailed that the Veteran's military occupational specialties were boatswain mate, navy recruiter canvasser, and security guard. In a September 2010 VA audiological examination, the Veteran provided a history of working in combat zones as a boatswain mate, recruiter, and police officer with related exposure to gunfire, small arms fire, and engine room and ventilator noise, with hearing protection. After service, the Veteran reported working at a production plant for a year with hearing protection and has since worked as a software engineer. He recreationally rode motorcycles for the past five years, mowed his lawn on a riding motorcycle while listening to an MP3 player, and had NASCAR season tickets where he wore headphones to listen to the drivers. The Veteran stated that tinnitus was recurrent, approximately twice per week, and began after he retired from service around 2000 or 2001. The VA examiner diagnosed the Veteran with mild to moderately-severe sensorineural hearing loss in the right ear and mild sensorineural hearing loss in the left ear. The Veteran's bilateral hearing loss was determined to have significant effects on occupation due to hearing difficulty. Additionally, the VA examiner found tinnitus "as likely as not a symptom associated with hearing loss." The VA examiner opined that hearing loss and tinnitus are "less likely as not caused by or a result of acoustic trauma" because his entrance and separation/retirement examinations were within normal limits, bilaterally, his audiometric configuration at separation was not consistent with acoustic trauma, he did not meet the criteria for service connection at separation, he was not involved in combat, and despite exposure to significant noise, there was no evidence of its effects present at separation. Finally, contributions from occupational and recreational noise exposure, as well as aging effects, could not be ruled out when evaluating the Veteran's current degree of hearing loss. The VA examiner also opined that the Veteran's tinnitus was not related to service because the Veteran was unable to correlate its onset to a particular in-service event, the Veteran stated tinnitus began about two years after service, there was no evidence of tinnitus in his service treatment records, and the VA examiner could not rule out post-service noise exposure as contributing to the onset of the tinnitus. The Board finds that the September 2010 VA examiner's opinion on the etiology of the Veteran's bilateral hearing loss is not adequate because it does not take into account service treatment records demonstrating a worsening of hearing acuity in service and the positive notation for hearing loss in his medical history at retirement. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding lay statements to be competent evidence of symptoms the veteran has actually observed that is within the realm of his personal knowledge). The VA examiner did not address the Veteran's in-service evidence of hearing loss, to include two treatment records documenting hearing acuity at 35 decibels in the 500 Hertz range and a worsening in hearing acuity at 6000 Hertz in both ears throughout the hearing conservation program. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The VA examiner's rationale is inadequate because it relied on a finding that the Veteran's hearing was within normal limits at separation. Id. at 157 (holding that even if hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation, medical evidence can establish service connection by showing that hearing loss is actually due to incidents during service); see also 38 U.S.C.A. § 1113 (West 2002). Additionally, the VA examiner's opinion on the etiology of the Veteran's tinnitus is not adequate because it failed to discuss the significance of the Veteran's reported noises in his ears while in service. See 8 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) (finding lay assertions may support the occurrence of lay-observable events or the presence of disability, or symptoms of disability, subject to lay observation). Accordingly, the Board finds it necessary to remand these claims for another VA audiological opinion to determine the etiology of the Veteran's bilateral hearing loss and tinnitus that adequately accounts for evidence of record and provides sufficient supporting rationale consistent with the evidence of record. See 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007). Accordingly, the case is remanded for the following actions: 1. The RO must obtain a new VA medical opinion from the audiologist who conducted the September 2010 VA audiological examination, or from another audiologist if the original audiologist is unavailable, to determine whether any degree of the Veteran's currently diagnosed bilateral hearing loss and tinnitus is related to service, to include exposure to acoustic trauma. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based upon review of the evidence of record, to specifically include the Veteran's service treatment records and in-service hearing conservation data demonstrating a worsening of the Veteran's hearing acuity, and with consideration of the Veteran's lay statements related to his noise exposure, service and post-service hearing protection, and the history of ringing in his ears, the audiologist must provide an opinion as to whether any degree of the Veteran's current bilateral hearing loss and tinnitus are associated with service, to include exposure to acoustic trauma. The RO must remind the examiner that, although hearing loss and tinnitus may not be shown in service or at separation from service, service connection may still be established if the medical evidence shows that they are actually due to incidents during service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion 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. 2. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file if any notice is returned as undeliverable. 3. Thereafter, the RO must review any examination report 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. After completing the above action, and any other development deemed necessary, the claims must be readjudicated. If any claim on appeal 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 claim must be returned to the Board for further 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).