Citation Nr: 1807276 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-30 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for hearing loss in the left ear. 2. Entitlement to service connection for hearing loss in the right ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This case comes before the Board of Veterans' Appeals (the Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran appeared at a videoconference hearing at the RO in November 2015 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has alleged a worsening of his hearing condition since the VA examination in February 2014. The February 2014 examination did not indicate the Veteran had a hearing loss disability as defined by VA regulations in the right ear; however, a worsening of the condition may have resulted in the threshold for a hearing loss disability being reached. Therefore, a new examination to determine the current nature and extent of the Veteran's hearing loss is necessary. Additionally, the previous examination in February 2014 did not take into consideration that service department audiometer test results prior to January 1, 1967, are assumed to have been reported in American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) units, unless otherwise indicated. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. The examination report from February 2014 does not appear to have performed this conversion for the Veteran's entrance examination prior to rending an opinion. Finally, there is conflicting evidence as to when the Veteran reported the onset of his hearing loss and tinnitus. While the February 2014 examination report indicates the Veteran said it began 15 years prior to the examination, a VA treatment record having the same date as the VA examination report indicated that hearing loss symptoms began while in service. Upon, remand, the examiner should clarify with the Veteran when the symptoms of hearing loss and tinnitus began. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records related to the Veteran's hearing loss and tinnitus. 2. Schedule the Veteran for an examination by an appropriate examiner to determine the current nature and etiology of his hearing loss of the left and right ears and tinnitus. The examiner should review the Veteran's claims file, including a copy of this remand, in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Based on the examination results and a review of the record, the examiner should provide the following opinions: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's left ear hearing loss began in or is related to active service. b. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right ear hearing loss began in or is related to active service. c. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's tinnitus began in or is related to active service. For all of the requested opinions, the examiner should consider the Veteran's lay statements regarding the nature of his symptoms. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The examiner's attention is directed to the statements found in the February 2014 VA examination report, the February 2014 VA treatment records, and the Veteran's statements regarding the nature of his in-service military noise exposure at the November 2015 videoconference. The examiner is also directed to convert any non-ISO based hearing loss examinations conducted prior to January 1967 by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale 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. Thereafter, readjudicate the issue 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS 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).