Citation Nr: 0733324 Decision Date: 10/24/07 Archive Date: 11/02/07 DOCKET NO. 05-16 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran had active service from August 1945 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. REMAND The Board finds that a remand is required in order to comply with VA's duty to assist. 38 U.S.C.A. § 5103A (2002). VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case, the veteran has a current diagnosis of bilateral sensorineural hearing loss. A January 2002 VA audiogram reveals mild sloping to severe hearing loss with poor speech score in the right ear and mild sloping to profound hearing loss with good speech score in the left ear. The veteran argues that he currently suffers from bilateral hearing loss and tinnitus due to acoustic trauma in service. Specifically, the veteran states that he was a turret gunner and used rags wrapped around his head as his only protection from acoustic trauma. He further states that the shell from a 16-inch gun exploded unexpectedly next to him while aboard the battleship USS Arkansas and caused ringing in his ears for a month. He alleges his hearing has been poor ever since. The Board notes that there is no evidence of hearing loss or tinnitus at the time of the veteran's separation from service in August 1946. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the veteran has not had the benefit of a VA examination that considers his lay evidence in assessing the etiology of his current bilateral hearing loss and any tinnitus that may be present. As such, a remand is required to secure this medical examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the veteran to be scheduled for a VA audiology examination to assess the nature and etiology of his current bilateral hearing loss and any tinnitus present. The claims folder must be made available to the examiner for review for the examination and the examination report must indicate whether such review was accomplished. The examiner is asked to review the claims folder, to include service medical records and all VA outpatient audiology notes. Based on current examination and review of the relevant audiological evidence of record, the examiner is asked to offer an opinion as to whether it is at least as likely as not that the veteran's current bilateral hearing loss is related to service, particularly exposure to noise therein. The examiner is also asked to comment on the nature and etiology of any current tinnitus. The term "as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In providing this opinion, the examiner should include a complete explanation of the rationale. If the examiner is unable to offer the requested opinion, the report should so state. 2. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause may have adverse consequences for his claim. 3. After completing any additional necessary development, the RO should readjudicate the issue on appeal. If the disposition remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity 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 Supp. 2006). _________________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).