Citation Nr: 1410155 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 13-13 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hemorrhoids. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2010 and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, the issues of service connection for bilateral hearing loss and tinnitus were denied in the January 2010 rating decision, and the issue of service connection for hemorrhoids was denied in the September 2010 rating decision. A notice of disagreement was separately filed as to each decision, and the issues were combined into a single appeal in a March 2013 statement of the case. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. 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 Once VA provides an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner noted in his December 2009 audiological opinion that the Veteran's hearing at his September 1967 separation examination was normal. However there is no indication that the examiner converted the audiogram results from ASA, used until November 1967, to ISO. When properly converted, upon separation the Veteran did not have normal hearing in his right ear at 4000 Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, the examiner did not address the threshold shifts in the Veteran's hearing during service, particularly the 20 decibel shift in the right ear at 4000 Hertz, as well as the uniform 5 decibel shifts in both ears across all other ranges. Finally, the examiner indicated that the Veteran stated his hearing loss had its onset in the last two to three years, when the notes accompanying the examination report clearly reflect that the Veteran reported that his hearing had become increasingly worse in the past two to three years, not that it had its onset during that period. As the examiner's opinion was based on inaccurate factual premises and all of the relevant evidence was not addressed or taken into account, a new examination is necessary. As the issue of tinnitus is dependent on the determination with respect to the claim of service connection for bilateral hearing loss, in light of the VA examination report, it is inextricably intertwined with the bilateral hearing loss issue and must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has been diagnosed with hemorrhoids, service treatment records contain a report of bleeding during bowel movement, the Veteran reports that hemorrhoids continued after service, and there is insufficient medical evidence to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board must remand the claim for a VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address his claims for service connection for bilateral hearing loss and tinnitus. The claims file must be made available and reviewed by the reviewer. A note that it was reviewed should be included in the opinion. After reviewing the claims file and the associated electronic files, the reviewer should answer the following questions: a) With respect to bilateral hearing loss: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's hearing loss began in or is related to service? b) With respect to tinnitus, is it at least as likely as not (a fifty percent probability or greater) that tinnitus began in or is related to service including excessive noise exposure therein? A detailed rationale for the opinion must be provided. For the purposes of the opinion, noise exposure in service based on the Veteran's military occupational specialty is conceded. The examiner should address the significance, if any, of the shift in hearing acuity in both ears at all frequencies during service, and particularly the 20 decibel shift in the right ear at 4000 Hz. June 1965 enlistment audiogram (converted to ISO): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 Not Tested 5 LEFT 15 10 10 Not Tested 5 September 1967 separation examination (converted to ISO): HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 Not Tested 25 LEFT 20 15 15 Not Tested 10 The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's opinion, it is as medically sound to find in favor of the proposition as to find against it. 2. Schedule the Veteran for a VA examination to address his claim for service connection for hemorrhoids. The claims file must be made available and reviewed by the reviewer. A note that it was reviewed should be included in the opinion. After reviewing the claims file and the associated electronic files, the reviewer should answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's hemorrhoids began in or are related to service, to include as a result of heavy lifting therein? See the VA Form 9 dated in May 2013. A detailed rationale supporting the reviewer's opinion should be provided. The examiner's attention is directed to the service treatment record from January 1967 describing bleeding during bowel movement, the Veteran's lay statements that hemorrhoids continued after service, and his assertion that heavy lifting in service caused the hemorrhoid disability. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as to find against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ S. S. TOTH 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).