Citation Nr: 1805300 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-30 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1958 to December 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran submitted a notice of disagreement (NOD) in August 2014. A statement of the case (SOC) was issued in June 2015. A timely substantive appeal was received in August 2015. In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing; a transcript of the proceeding is of record. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus caused by noise exposure during his service. After review of the evidence of record, the Board has determined that additional evidentiary development is necessary prior to adjudication of the claims. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Specifically, the Veteran must be afforded a VA examination in order to obtain a medical opinion on the issue of a potential nexus between his service and the claimed conditions. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A Report of Medical Examination conducted upon his separation from service in December 1958 contains whisper test results of 15/15 in each ear. Audiometer findings were not indicated. In the April 2014 rating decision, the RO denied entitlement to service connection on the grounds that the evidence did not show current audiometric findings within the criteria for a grant of service connection for hearing loss. Additionally, the RO found no evidence that the claimed conditions were the result of an injury sustained during his service. In his NOD, the Veteran disagreed with the denial and objected to the fact that he had not been afforded a VA examination in conjunction with his claim. The Veteran submitted private treatment records dated April 2015 which reflected a diagnosis of moderate severe sensorineural hearing loss in both ears with secondary tinnitus. He also submitted a statement dated April 2015 in which he described serving in the infantry with exposure to loud explosive noises constantly while in the Army. In the June 2015 SOC, the RO continued the denial of the claims on the grounds that service treatment records showed no evidence of treatment or diagnosis of the claimed conditions while in service. In his VA Form 9, the Veteran continued his disagreement with the denial of his claims and alleged that VA failed its duty to assist in developing his claim fully. Finally, in his hearing before the Board in October 2017, the Veteran testified that during his infantry training, he fired rifles, a bazooka, grenades, and handguns. To date, the Veteran has not been provided with a VA examination to address the etiology of the diagnosed bilateral hearing loss and tinnitus. A remand is necessary to obtain one. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 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 audiological examination for the purpose of obtaining a medical opinion as to the nature and etiology of his diagnosed bilateral hearing loss and tinnitus. The claims file and a copy of this REMAND are to be made available to the examiner. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. a) The examiner is requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed bilateral hearing loss was caused by or results from the Veteran's service. The examiner should indicate whether the audiometric findings are consistent with military acoustic trauma. The examiner should review and discuss the Veteran's lay statements regarding in-service noise exposure consistent with his infantry training. b) The examiner is requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed tinnitus was caused by or results from the Veteran's service. The examiner should review and discuss the lay evidence, including the Veteran's statements regarding in-service noise exposure consistent with his infantry training. c) The examiner is requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed tinnitus was caused by or results from the Veteran's bilateral hearing loss. d) The examiner is requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed tinnitus has permanently progressed at an abnormally high rate (aggravated) due to or as the result of the Veteran's bilateral hearing loss. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 2. Review the examination report(s) to ensure compliance with the directives of this REMAND. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the above actions, the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has 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 (2012). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).