Citation Nr: 1802830 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 16-25 934 ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REMAND The Veteran served on active duty from September 1957 to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran asserts that he has bilateral hearing loss and tinnitus that are a result of acoustic trauma in service. Specifically, the Veteran asserts that while stationed at Naval Air Station Barbers Point Hawaii, he lived beside the aircraft hangars. He reported that the jets came off of carrier ships every six months to be serviced and that he was subjected to the loud engine noise of the planes every day and part of the nights. On his July 2012 VA Form 21-526, the Veteran wrote that his bilateral hearing loss and tinnitus began in January 1959. He noted that he was never provided nor wore hearing protection while working the runway. In a November 2012 statement by the Veteran's daughter, she related that the Veteran could never afford hearing aids, so he would never get his hearing checked; yet, through VA, he has since been able to get a hearing aid, which has made a great difference. An August 2013 Department of Veterans' Affairs Formal Finding of Unavailability of Service Treatment Records memo indicates that the Veteran's service treatment records are unavailable for review. In cases where a veteran's service treatment records are unavailable through no fault of his or her own, there is a heightened obligation to assist the veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C.A. § 5107a; 38 C.F.R. § 3.303 (a). Where service treatment records are unavailable, the heightened duty to assist includes the obligation to search for alternative methods of proving service connection. See Moore v. Derwinski, 1 Vet. App. 401 (1991). The Veteran's DD-214 shows that his military occupational specialty (MOS) in service was a motion picture operator. An April 2012 VA treatment record shows that the Veteran reported a gradual decrease in hearing over the past 10 years. The Veteran was afforded an August 2013 VA audio examination. The audiometric findings revealed bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The examiner noted that the Veteran was a motion picture operator during service, but used a sweeper to clean the runways. The examiner also indicated that the Veteran had civilian noise exposure for 30 years of pouring concrete without hearing protection and approximately 20 years in a factory with no hearing protection until the last four years. He also used lawn power tools without hearing protection. The Veteran reported that the onset of his hearing loss was when he got out of the service. Following interview and examination of the Veteran, the examiner was unable to provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The examiner explained that there was no audiometric data from entrance or separation to determine if there was any shift in hearing or any damage to the auditory system by noise on active duty. The examiner continued to state that the Veteran's MOS does not concede noise exposure, but the Veteran reported working heavy sweeper on the runway and being exposed to the noise of the sweeper and aircrafts. The examiner further stated that the Veteran had over 50 years of civilian occupational noise exposure that was at least as likely as not to have had an effect on his hearing. Without data from the Veteran's service treatment records, the examiner found that it was impossible to state beyond speculation whether noise of sweeper and aircraft contributed to his current hearing loss. With regard to the Veteran's claim for tinnitus, the August 2013 VA examiner indicated that the Veteran reported an onset of constant tinnitus for the last 10 to 15 years. The examiner found that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because he reported having an onset of constant tinnitus 10 to 15 years ago and because research did not support late onset noise induced damage to the auditory system or tinnitus. A January 2014 private audio assessment shows that the Veteran believed his hearing loss was related to military noise exposure as he was located near the service facility for jet engines for 22 months in Hawaii. He also expressed that after leaving the Navy, he experienced an "ocean roaring" tinnitus in both ears at the same time as his hearing loss. The Veteran reported working in construction after leaving the service. A January 2014 letter by Dr. C. F. reflects the opinion that the type of hearing loss that the Veteran was experiencing was likely related to his military service. Dr. C. F. did not include a rationale for his opinion. The Board finds that remand is warranted to in order to obtain another VA opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. The August 2013 VA examiner appeared to attribute the Veteran's current hearing loss and tinnitus to post-military noise exposure, but then stated that he was unable to provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation, stating that without data from the Veteran's service treatment records, it was impossible to state beyond speculation whether noise of sweeper and aircraft contributed to his current hearing loss. Lastly, the August 2013 VA examiner found that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because he reported having an onset of constant tinnitus 10 to 15 years ago and because research did not support late onset noise induced damage to the auditory system or tinnitus. However, records reflect the Veteran's reports of tinnitus (regardless of whether it was constant) as beginning in January 1959 and having experienced an "ocean roaring" tinnitus in both ears since leaving service. Therefore, in view of the foregoing, a remand is warranted in order to obtain an additional medical opinion regarding the claims on appeal. 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. Obtain any outstanding VA treatment records. 2. Forward the claims file to an appropriate VA clinician to determine the nature and etiology of the Veteran's currently diagnosed bilateral hearing loss and tinnitus. Schedule a VA examination if deemed necessary by the clinician in order to respond to the questions. It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. 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. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Based on review of all of the evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current hearing loss disability and tinnitus are related to the Veteran's military service, including noise exposure therein. In responding to this opinion request, the examiner must consider the Veteran's report of in-service acoustic trauma as described throughout the record, to include the July 2012 VA Form 21-526 and the August 2013 VA examination report. The examiner should also address the Veteran's reports of having hearing loss and tinnitus since service, as well as address the significance, if any, of the Veteran's occupational noise exposure while working in construction and in a factory post service. The examiner must provide a rationale for the opinions. 3. Finally, readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: North Carolina Division of Veterans Affairs 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).