Citation Nr: 0732785 Decision Date: 10/18/07 Archive Date: 10/26/07 DOCKET NO. 06-26 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from March 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran appeared and testified at a personal hearing in July 2007 before the undersigned Veterans Law Judge sitting at St. Petersburg, Florida. A transcript of that hearing has been added to the record. This case has been advanced on the Board's docket due to the advanced age of the appellant. See 38 U.S.C.A. §7107 (West 2002 & Supp. 2006); 38 C.F.R. § 20.900(c) (2006). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Court in McLendon observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the January 2007 VA audiology examination report reflects competent evidence of current disability of bilateral sensory-neural hearing loss, as indicated by audiometric test scores, speech recognition scores, and diagnoses, and a diagnosis of bilateral tinnitus. The credible evidence of record shows that the veteran experienced acoustic trauma in service of exposure to rifle fire and bombs during a basic training exercise in 1945, with subsequent decreased hearing and tinnitus for about a week, and the hearing loss improved but the tinnitus remained. The evidence also includes some indication that the bilateral hearing loss disability and tinnitus may be associated with the veteran's service. The veteran makes this contention, and has offered statements and personal hearing testimony regarding the onset and continuous progressive bilateral hearing loss, and continuous tinnitus since 1945 in service. On the question of relationship of current hearing loss and tinnitus to service, the VA examiner at the January 2007 VA audiology examination noted a history of military noise exposure; however, the medical nexus opinion rendered was based on the fact that there was no evidence of onset of hearing loss or tinnitus in service or until years after service. The credible evidence, including the veteran's history at the January 2007 VA audiology examination, his statements, and his personal hearing testimony, shows that the veteran has experienced tinnitus since 1945 in service during a basic training exercise where he was exposed to rifle fire and bombs. The credible evidence also shows the onset of hearing loss just a few years after service, and that the hearing loss has been characterized by the VA examiner as long-standing and progressive in nature. The January 2007 VA audiology examination also indicated that the in-service whispered voice test was not sensitive to a high-frequency hearing loss, but still relied exclusively on service medical records that did not show complaints or findings of ear problems, bilateral hearing loss, or tinnitus at service separation as the basis for an unfavorable medical nexus opinion. As in this case, where audiological measures of hearing loss in service do not demonstrate any measurable loss of hearing in service, the Court, in interpreting 38 C.F.R. § 3.385, has held that "the regulation does not in and of itself rule out an award of service connection due to the absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria . . . Therefore, the provisions of 38 C.F.R. § 3.385 do not serve as a bar to service connection." Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The January 2007 VA audiology opinion is also inadequate for rating purposes because it limited the evidence it considered in forming the opinions to the service medical record evidence, and did not actually render an opinion as to whether the bilateral hearing loss or tinnitus, even if thought to be of post-service onset, was at least as likely as not related to acoustic trauma in service. The Court has held that a veteran may establish the required nexus between his current hearing loss disability and his term of military service if he can show that his hearing loss disability resulted from acoustic trauma. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). For these reasons, the AOJ should undertake any further development necessary to decide the claims for service connection for bilateral hearing loss and tinnitus, including additional VA audiology examination and medical nexus opinions. Accordingly, the issues of service connection for bilateral hearing loss and tinnitus are REMANDED for the following action: 1. The AOJ should arrange for the veteran another VA audiology examination of both ears. The examiner should be provided the full and accurate relevant history of bilateral hearing loss disability, including the history of exposure to acoustic trauma in service (light and heavy machine gun fire in 1945), in-service hearing loss for one week following noise exposure in 1945, in-service and continued bilateral tinnitus following noise exposure in 1945, and progressive sensory-neural hearing loss. The examiner should be provided access to relevant documents in the claims file in conjunction with the examination. For the currently diagnosed bilateral hearing loss disability and diagnosed bilateral tinnitus, the examiner should offer opinion(s) as to whether the current hearing loss disability and tinnitus are at least as likely as not (50 percent or greater probability) related to (caused or aggravated by) in- service acoustic trauma. The examiner should not limit the evidence considered to the service medical record evidence, and should not base a medical opinion exclusively on the service medical records, but should consider the evidence that shows exposure to acoustic trauma in service (light and heavy machine gun fire in 1945), in-service hearing loss for one week following noise exposure in 1945, in-service and continued bilateral tinnitus following noise exposure in 1945, complaints of hearing loss within a few years of service, and the progressive nature of the bilateral hearing loss. A complete rationale should be provided for the opinion(s) given. If any requested medical opinion cannot be given, the examiner should state the reason why. 2. Following the above development, VA should readjudicate the claims for service connection for bilateral hearing loss and tinnitus. If any of the benefits sought on appeal are not granted, an appropriate supplemental statement of the case should be issued. The veteran and his representative should be afforded an opportunity to respond to the supplemental statement of the case before the claims folder is returned to the Board. The purpose of this remand is to assist the veteran by further developing his claims for service connection for bilateral hearing loss and tinnitus. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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 Supp. 2006). _________________________________________________ JEFFREY PARKER Acting 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).