Citation Nr: 18149528 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 18-33 359 DATE: November 9, 2018 ISSUES 1. Entitlement to service connection for bilateral hearing loss (BHL). 2. Entitlement to service connection for tinnitus. REMANDED Entitlement to service connection for BHL is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1964 to February 1969. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning entitlement to service connection for muscle weakness, spasms in the upper extremity, gastroesophageal reflux disease, acquired psychiatric condition to include posttraumatic stress disorder, lung condition, skin condition to include acne and total rating based on individual employability due to service-connected disabilities. This appeal is listed in the VACOLS appeals tracking system. While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to delay the RO’s action on that appeal. As such, no action will be taken by the Board at this time, and those issues will be the subject of a later Board decision, if ultimately necessary. The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. The Veteran contends that service connection is warranted for the BHL and tinnitus as they are related to noise exposure during combat while he was stationed in Vietnam. Service personnel records show that the Veteran was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam and the Vietnam Service Medal with Four Bronze Service Stars for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam. Service treatment records show that he was in a helicopter crash in July 1968. Therefore 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Notwithstanding, the Federal Circuit explained that “[e]ven when the section 1154(b) combat presumption applies, a ‘veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.’” Id. As such, noise exposure during combat and in-service auditory injuries are conceded. In this case, the Veteran was afforded a VA examination in October 2014 in which the examiner opined that hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that as there was only a separation hearing examination in Veteran's record, it was unknown what the Veteran's hearing was at enlistment and if there was a presence or absence of significant threshold shifts during military service. The examiner stated that the Veteran's noise exposure was considered moderate based on his military occupation specialty: armament repairer. The examiner stated that the Veteran had a history of unprotected occupational noise exposure as a truck driver and police officer/EMT. The examiner stated that based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. The examiner opined that since the Veteran's hearing was normal at separation, it was less likely as not that the hearing loss was a result of noise exposure while in the service. The October 2014 examiner stated that the Veteran did not report recurrent tinnitus. However, the Board notes that VA treatment records in November 2009 showed a complaint of tinnitus on and off in the bilateral ears. An addendum VA opinion was obtained in May 2018 in which the examiner stated that the enlistment hearing examination revealed normal hearing bilaterally from 500 to 6000 Hertz (Hz) with the exception of a mild hearing loss in the right ear at 6000Hz; the separation hearing examination revealed normal hearing bilaterally from 500 to 6000 Hz with no significant in-service threshold shifts for either ear. Therefore, the examiner opined that it was less likely as not that the Veteran's hearing loss was a result of noise exposure while in the service. The examiner stated that based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. The examiner also stated that the Veteran denied tinnitus on his 2014 VA examination. These assessments are in contrast to the actual record outlined above. In this case, the Board finds that the Veteran should be afforded a new VA examination on remand to address the etiology of any BHL and tinnitus diagnosed during the pendency of this appeal and to address his contentions that these disabilities are related to his conceded noise exposure during combat. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. After the above development is completed, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed BHL and tinnitus. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any BHL disability and tinnitus diagnosed during the pendency of this appeal had its onset in service or is otherwise etiologically related to service, to include the conceded noise exposure during combat. In addressing this question, the examiner is advised that in-service auditory injuries as related to a BHL disability and tinnitus are established by virtue of the combat presumption, despite no documentation of the same. Failure to concede in-service auditory injuries and the resulting disabilities will render the opinion inadequate. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could 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 (2011). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel