Citation Nr: 1808121 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 595A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Gail Hammer, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1975 with subsequent service in the Naval Reserve. This case comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Jurisdiction has since been transferred to the RO in Seattle, Washington. In its decision, the RO denied service-connected compensation for a claimed bilateral hearing loss disability and for tinnitus. The Veteran timely appealed the denial of both benefits. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. For the reasons below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During his naval service, the Veteran was part of the crew of a submarine. In his written statements and hearing testimony, he described some of his training for submarine service which, he believes, contributed to hearing loss and tinnitus. He testified that he was in a pressurized metal tank, designed to simulate the effects of being 100 feet beneath the water. According to the Veteran, one of his ears hurt for a few weeks after this exercise. He also testified that he experienced numerous earaches in service. He attributes his claimed hearing loss and tinnitus to this incident and to his claimed exposure to the loud noise of machinery aboard the submarine. Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. To help decide the Veteran's claim, the AOJ arranged for an examination by an audiologist in June 2015. The examination included audiometric tests, which satisfied the regulatory criteria for hearing loss disability in the left ear only. For both ears, the audiologist indicated Maryland CNC speech recognition scores of 96 percent. The Veteran's VA medical treatment records include an earlier audiology consultation report, dated February 2012. The audiologist noted reports of noise exposure in service and recurrent tinnitus. Apparently the consultation included an auditory threshold test, because the examiner noted "normal thresholds with a mild drop only at 500Hz bilateral." The VA treatment records, however, do not include the numerical auditory thresholds themselves. According to the audiologist, "Audiometric data [is] available for review under tools, Audiogram display." The audiologist's assessment was sensorineural hearing loss. The February 2012 VA audiology note indicates that potentially relevant hearing test results exist which have not been associated with the claims file. Pursuant to its duty to obtain potentially relevant evidence, the Board will remand this case so that the AOJ can make reasonable efforts to obtain the missing audiogram. The Veteran recently submitted the results of hearing tests from a private audiologist, dated January 2017. Like the VA examiner's results, the auditory thresholds recorded by the private audiologist appear to indicate a hearing loss disability in the left ear only. But the report indicates a speech recognition score of 90 for the right ear and 85 for the left ear. It is not clear whether the test used was the Maryland CNC Test but, if it was, the results are below 94 percent in both ears, which would indicate a bilateral hearing loss disability. The January 2017 report potentially indicates that, although a bilateral hearing loss disability was not present in June 2015, the claimed disability may exist now. For this reason, on remand, the AOJ should schedule a new VA audiology examination. Finally, the AOJ should obtain new expert opinions concerning the likely causes of the Veteran's claimed hearing loss and tinnitus. The only opinion on this issue comes from the June 2015 VA examiner. In her opinion, it was less likely than not that current hearing loss was related to any disease, injury or event during naval service. To support this conclusion, the examiner explained that the Veteran's military occupation specialty "has a low probability for hazardous noise exposure and the configuration of [the Veteran's] current hearing loss is not consistent with hearing loss as a result of noise exposure." When VA undertakes to provide a medical opinion, "[the Secretary] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board must ensure that the examination is adequate." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). "An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (quoting Nieves-Rodrigeuz v. Peake, 22 Vet. App. 295, 301 (2008)). The June 2015 audiologist's opinion provided a reasonable explanation - that the Veteran's current hearing loss is not the kind of hearing loss caused by noise exposure - for rejecting the suggestion that noises aboard the submarine caused him to develop hearing loss. But this rationale potentially supports the Veteran's contention that his time in a pressurized chamber during submarine training is related to his current hearing loss. The June 2015 opinion, however, made no attempt to explain whether or not the pressurized chamber might be related to the Veteran's current hearing loss. With respect to tinnitus, in the opinion of the June 2015 examiner, it is less likely than not that the condition is related to active duty service. To support this conclusion, the examiner relied on the low probability of noise exposure associated with submarine service and the Veteran's statement to the examiner that he was in his 50s when he first began to experience tinnitus. The examiner, however, made other findings which do not favor the denial of the Veteran's tinnitus claim at this stage in the proceedings. The examiner opined that it was at least as likely as not that the Veteran's tinnitus was a symptom associated with hearing loss. As the Board has explained, it must remand the claim for service connection for a hearing loss disability - a condition which, according to the examiner, is likely related to tinnitus. Given the examiner's opinion concerning the relationship of the Veteran's hearing loss and tinnitus, it is possible that, in this case, the two claims are intertwined, because the hearing loss claim, if successful, could help establish the Veteran's eligibility for compensation for tinnitus. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will therefore remand the Veteran's tinnitus claim. The post-remand examiner should also provide a new opinion concerning the likely causes of tinnitus, which should address the Veteran's contentions concerning his time in the pressurized chamber. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make reasonable efforts to obtain the audiogram, including the auditory thresholds in decibels, associated with the Veteran's consultation with a VA audiologist in February 2012. A note describing this consultation, without the audiogram, has been associated with the claims file and is part of the Veteran's post-service VA medical treatment records. The note indicates, "Audiometric data [is] available for review under tools, Audiogram display." The AOJ should associate the missing February 2012 audiogram with the electronic claims file. If the February 2012 audiogram is unavailable, the AOJ should describe in writing its efforts to obtain the missing audiogram, indicating the results of any requests for these test records and explaining why further efforts to obtain the test results would be futile. 2. Schedule a new audiology examination with the audiologist who conducted June 2015 VA-authorized audiology examination. If the audiologist who examined the Veteran's hearing in June 2015 is not available for any reason, another qualified person should conduct the examination and provide the opinions requested below. The entire electronic claims file should be made available to the examiner, including any new information obtained as a result of the development ordered in part one of these instructions. The examiner should record the Veteran's current auditory thresholds, in decibels, at the frequencies described in 38 C.F.R. § 3.385, and also record the results of Maryland CNC speech recognition tests. After examining the Veteran and reviewing the relevant records, the examiner should respond to the following questions: (a) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's claimed hearing loss disability, if any, is related to any disease, injury or event during the Veteran's active duty service, including the earaches described by the Veteran in his hearing testimony and his time in a pressurized chamber designed to simulate the experience of being 100 feet under water as part of his submarine training. The examiner should further explain the statement in the June 2015 audiology examination report indicating that "the configuration of [the Veteran's] current hearing loss is not consistent with hearing loss as a result of exposure to hazardous noise." If exposure to hazardous noise did not cause the Veteran's hearing loss, the examiner should identify what he or she believes are the more likely causes of his current hearing loss and thoroughly explain the reasons for that conclusion. If the examiner determines that any of the requested opinions cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. (b) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's tinnitus is related to any disease, injury or event during the Veteran's active duty service, including the earaches described by the Veteran in his hearing testimony and his time in a pressurized chamber designed to simulate the experience of being 100 feet under water as part of his submarine training. If the examiner answers part (a) of this request with an opinion indicating that hearing loss was caused by an in-service disease, injury or event, the examiner should further indicate whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's current tinnitus is the result of his current hearing loss. The examiner should provide a thorough rationale for all opinions provided. If the examiner determines that any of the requested opinions cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. The AOJ must ensure that all of the examination reports and opinions requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. If the audiologist assigned to provide the opinion requested in part two of these instructions indicates that he or she does not have the knowledge or training necessary to provide an expert opinion concerning the probability of a relationship between hearing loss or tinnitus and the Veteran's claimed in-service earaches and time in a pressurized chamber, the AOJ should attempt to obtain the requested opinion from an examiner who does have the relevant expertise. 4. After ensuring any other necessary development has been completed, the AOJ should then readjudicate the claims. If any benefit sought on appeal remains denied, the AOJ should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. 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 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). _________________________________________________ DAVID L. WIGHT 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).