BVA9505251 DOCKET NO. 93-12 218 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for defective hearing, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of an injury to the right ring and little fingers, currently evaluated as 10 percent disabling. 3. Entitlement to secondary service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from February 1948 to March 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1992 decision by the Department of Veterans Affairs (VA) Winston-Salem, North Carolina, Regional Office (RO), which denied a rating in excess of 10 percent for hearing loss, a rating in excess of 10 percent for residuals of injuries to the right ring and little fingers, and a temporary total rating based on a hospitalization from May to July 1992. The case was remanded by the Board to the RO in June 1993 for the purpose of scheduling a hearing before a traveling section of the Board. The hearing was scheduled for July 12, 1993, but the veteran failed to appear, and the case was subsequently returned to the Board. Since a Substantive Appeal as to the issue of entitlement to a temporary total rating based on a hospitalization has not been received, the veteran's appeal of this issue has not been perfected. 38 C.F.R. § 20.302 (1994). (I also note that, in written argument dated in May 1993, the veteran's representative requested that the issue of be withdrawn.) The representative has raised the issue of entitlement to service connection for tinnitus on a secondary basis, arguing that the condition is etiologically related to the veteran's hearing impairment, and this issue will be addressed. Appellate consideration of the issues of entitlement to ratings in excess of 10 percent for hearing loss and residuals of an injury of the right ring and little finger is deferred pending completion of the development requested in the Remand section of this decision which follows the Board's order. In written argument dated in August 1993, the representative indicated that the veteran is seeking service connection for dizziness secondary to his service-connected hearing loss. This matter has not been developed for appellate consideration and is not intertwined with the current appeal. Accordingly, the Board refers the matter to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for tinnitus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim for secondary service connection for tinnitus. FINDINGS OF FACT Tinnitus is etiologically related to the veteran's service- connected bilateral hearing loss. CONCLUSION OF LAW Tinnitus is proximately due to or the result of service-connected bilateral hearing loss. 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served on active duty from February 1948 to March 1952. He was an airman in the United States Air Force and served in Korea during the Korean Conflict. His service medical records show that he was hospitalized in November 1951 for evaluation of recurrent blockage of the left ear with occasional slight discharge. History reflected that the condition was previously treated at a dispensary and evacuation hospital (in Korea). The pain cleared, but because of persistent deafness in the left ear, the veteran was evacuated to Japan. Physical examination showed both eardrums were entirely normal in appearance, with no evidence of fluid. Findings on spoken and whispered voice hearing tests included 15/20 on the right and 1/15 on the left. It was concluded that the veteran had good hearing in the right ear and a hearing loss in the left ear. It was opined that his hearing deficit was probably a residual of a previous episode of otitis media. Following a VA medical examination of the veteran in November 1955, the pertinent diagnosis was severe mixed deafness of the left ear and mild decibel loss of the right ear. Following a VA audiometric examination in January 1956, the diagnosis was partial mixed-type deafness of the left ear. An RO decision in April 1956 granted service connection and assigned a 10 percent rating for defective hearing. That rating has been in effect ever since. The service medical records and both private and VA clinical records on file, dated from the 1950's to the 1980's, reflect a complaint of ringing in the ears in 1970. Numerous audiometric examinations performed during this time confirmed the presence of deafness in the left ear and several examinations showed mild sensorineural hearing loss on the right. It was noted in an April 1979 VA outpatient clinic record that the veteran's mild sensorineural hearing loss was compatible with a history of noise exposure. A VA audiometric examination of the veteran in November 1992 confirmed profound sensorineural hearing loss of the left ear. Hearing was reported as within normal limits on the right. History obtained at that time included tinnitus, with an onset date of 1987, when it was noticed during a change in altitude. The veteran described a bilateral ringing sound which occurred periodically 2 to 3 times a week. II. Analysis The Board initially finds that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, his claim is not inherently implausible. The relevant evidence has been obtained by the RO, and there is no further duty to assist him in developing the facts pertinent to his claim. A review of the record shows that the veteran served during the Korean Conflict and has a sensorineural hearing loss due to service. Tinnitus is often associated with and etiologically related to his hearing condition. 2 Cecil, Textbook of Medicine, § 464 at 2119-2120 (18th ed. 1988). That is the thinking in the medical community. Secondary service connection is therefore warranted. 38 C.F.R. § 3.310(a). ORDER Secondary service connection for tinnitus is granted. REMAND The veteran's remaining claims are well-grounded, meaning they are not inherently implausible, and a review of the file indicates that there is a further VA duty to assist him in developing the facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1994). Following the VA ear examination in 1992, the examiner recommended that the veteran be seen by an otolaryngologist because of the now service-connected tinnitus and complaints of dizziness. That examination needs to be conducted. Further, in the judgment of the Board, another orthopedic examination is warranted. The representative notes that the last examination did not include a determination of grip strength of the veteran's right hand and has pointed out that a VA radiologist has suggested that X-ray findings pertaining to the veteran's right hand injury be correlated with the medical history and clinical findings. In view of the foregoing and the allegation of increased disability, contemporaneous examinations are warranted. Green v. Derwinski, 1 Vet.App. 121, 123-124 (1991); Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). Hence, this case is REMANDED to the RO for the following action: 1. The RO should clarify whether the veteran is now in receipt of Social Security benefits and if so, obtain the medical records upon which that decision was based. 2. The RO should schedule the veteran for a otolarygological and audiological examinations to determine the current severity of his auricular problems. All indicated tests should be conducted. The claims folders must be made available to the examiners for review. The examiners should conduct all indicated tests and describe the degree of functional impairment caused by the auricular disabilities. 3. The RO should have the veteran undergo a VA orthopedic examination for the purpose of evaluating his service-connected residuals of an injury of the right hand. All indicated studies should be accomplished, including grip strength testing of both hands and range of motion of the fingers and thumb of the right hand. The doctor should describe the degree of functional impairment stemming from the right hand injury. The claims file must be made available to and reviewed by the orthopedist prior to the examination. If the veteran is dissatisfied with the decision, he and his representative should be issued a supplemental statement of the case, and they should be given an opportunity to respond. The case should then be returned to the Board. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. As to the claims for increased ratings, under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).