Citation Nr: 1736282 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 12-01 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection of bilateral hearing loss, to include as secondary to service-connected type II diabetes mellitus, coronary artery disease, and hypertension. 2. Entitlement to service connection of tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1967. The Veteran is a Vietnam Era Veteran who served in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of the hearing is associated with the claims files. The Board has reviewed the electronic records maintained in the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that service connection is warranted for tinnitus and bilateral hearing loss. A thorough review of the record indicates that further development is warranted prior to adjudicating the Veteran's claim. In January 2011, the Veteran underwent a VA Audiological Examination. The examiner opined that the Veteran's tinnitus and bilateral hearing loss were "less likely than not...caused by or a result of the veteran's in service noise exposure as an armorer on the DD-214." In her support of her opinion, the audiologist cited to the lack of evidence on the Veteran's DD 214 that he was an armorer; the Veteran's history of known risk factors for hearing loss, including hypertension, coronary artery disease, and diabetes mellitus; his first VA visit for hearing loss was in 2008; and lack of service treatment record reflecting complaints, diagnosis of hearing for hearing or tinnitus. The Board finds that this examination is inadequate for several reasons. As an initial matter, the examiner failed to take into account that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, Training Letter 10-02 indicates that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. Although his DD 214 does not reflect that he was armorer, the Veteran is competent and credible with regard to his assertions of noise exposure in service. Also, during his May 2017 hearing, the Veteran and his representative indicated that his disabilities may be related to in-service treatment for otitis externa and inflammation of the ear canal in June 1966. Review of the service treatment records confirm that he was seen at that time for mild otitis externa. Additionally, with regard to the examiner's association of hearing loss to coronary artery disease, hypertension, and type II diabetes mellitus, the Board observes that the Veteran is service-connected for all three disabilities. Thus, the issue of whether the claimed bilateral hearing loss is secondary to these service-connected disabilities has been raised. See 38 C.F.R. § 3.310(a) (2016). Therefore, another examination is necessary to address the etiology of the Veteran's hearing loss and tinnitus, to include whether such is related to in-service noise exposure and/or treatment for otitis externa, and whether hearing loss is caused or aggravated by service-connected coronary artery disease, hypertension, and/or type II diabetes mellitus. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007); see also 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). While on remand, appropriate efforts must be made to obtain any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records. 2. After any additional records are associated with the claims file, schedule the Veteran for an examination to determine the nature and etiology of any current hearing loss and tinnitus. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss and tinnitus is causally or etiologically related to the Veteran's military service, including asserted noise exposure therein (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years) and/or the in-service notation of mild otitis externa in June 1966. b) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current bilateral hearing loss is either caused by or permanently aggravated by the Veteran's service-connected coronary artery disease, hypertension, and/or type II diabetes mellitus. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 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 evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is 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 last 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 2014). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).