Citation Nr: 1801093 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-00 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran had active service from September 1966 to September 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Decision Review Officer (DRO) in October 2014, and before the undersigned Veterans Law Judge (VLJ) in April 2017. Transcripts of these hearings have been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran seeks service connection for bilateral hearing loss disability and tinnitus. He served as an infantryman, with service as an air crewman in Vietnam. As such, VA has accepted his exposure to acoustic trauma. During his April 2017 hearing, the Veteran provided testimony regarding his exposure to noise from various weapons as an infantryman during service. He stated that he experienced a decrease in hearing acuity during service, as well as ringing in his ears. The United States Court of Appeals for Veterans Claims (Court) has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). Moreover, in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The record contains two opinions with respect to the etiology of the Veteran's bilateral hearing loss disability and tinnitus, as well as a private audiometry report. On VA examination in January 2012, auditory thresholds for the left ear were not high enough to be deemed disabling for VA compensation purposes. With respect to right ear hearing loss and tinnitus, the examiner stated that they were not caused by or a result of military service, reasoning that the Veteran had normal hearing test results at separation in September 1968, and that there was no mention of tinnitus in the service treatment records and no direct link between tinnitus onset and service. These opinions do not appear to account for the Veteran's report of symptoms during and since service. In that regard, the opinions are deficient. The report of a March 2012 private audiogram indicates thresholds for the right ear that are worse at some frequencies than those reported by the VA examiner. Because, as discussed below, further examination is required and such might reveal left ear hearing loss for VA compensation purposes, the Board has determined that the issue of entitlement to service connection for left ear hearing loss disability should not be addressed prior to the addition of evidence obtained on remand. A May 2017 nexus statement form completed by R.H., MD, a family practitioner, indicates his conclusion that bilateral hearing loss and tinnitus are most likely cause by or a result of unprotected noise exposure in the Army. Dr. H. indicated that his conclusion was based on test results and examination, noting that "patient has a severe hearing loss which most likely is caused by unprotected loud noise exposure while in Army, from gunfire, machine guns, helicopters, etc." Unfortunately, this statement does not sufficiently discuss the medical basis underlying Dr. H's conclusion, and renders the opinion inadequate for the purpose of deciding the claim. In light of the above discussion, the Board has determined that an additional examination should be conducted to allow an examiner to consider whether there is left ear hearing loss for VA compensation purposes, and to consider the Veteran's statements in reaching a conclusion with respect to the etiology of the Veteran's hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his hearing loss and tinnitus. The examiner should be provided access to the electronic record, and should note in the examination report that such record was reviewed. A full history should be elicited from the Veteran, the pertinent details of which should be included in the examination report. Following audiological and physical examination, and review of the claims file, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current hearing loss disability and tinnitus had their onset in service or are otherwise related to any disease or injury in service. A discussion of the complete medical rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. Review of the entire claims file is required; however, the examiner's attention is specifically directed to the Veteran's contentions regarding symptoms of decreased hearing acuity and ringing in his ears during service and in the years thereafter. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Review the examination report for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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. §§ 5109B, 7112 (West 2012). _________________________________________________ G. A. WASIK 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) (2017).