Citation Nr: 1237148 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-23 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from November 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied service connection for hearing loss and granted service connection and assigned a 10 percent evaluation for tinnitus, effective January 17, 2008. In January 2009, the Veteran submitted a notice of disagreement (NOD) to the RO regarding the denial of service connection for hearing loss and the rating assigned his tinnitus. The RO issued a statement of the case (SOC) in April 2010. On his June 2010 VA Form 9, the Veteran indicated his wished to appeal only the issue of "hearing." Therefore, only the issue of entitlement to service connection for bilateral hearing loss is currently before the Board. See 38 C.F.R. §§ 20.200, 20.202. Finally, in a June 2010 written statement the Veteran withdrew his earlier January 2009 request for a Board hearing. 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 The Veteran seeks entitlement to service connection for bilateral hearing loss, and contends that it is due to noise exposure during service in Vietnam. He claims that he was exposed to loud noises from mortars and explosions from ammunition dumps and that he did not use hearing protection devices. The Veteran's DD Form 214 confirms that he was awarded the Vietnam Service Medal and Combat Infantryman Badge (CIB) and that his military occupational specialty was as a fieldsman. Thus, the Veteran's claims of being exposed to loud noises during service in Vietnam are deemed credible. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 U.S.C.A. § 1154(b). An April 2008 VA examination report noted that the Veteran complained of hearing loss and reported noise from infantry and artillery and that he wore no hearing protection devices. Following service he worked for the federal government, which involved no noise and operated a farming operation on the side, with no hearing protection devices. Hearing testing was conducted and the Veteran was given a diagnosis of sloping to severe hearing loss bilaterally. The examiner reviewed the Veteran's induction and separation examinations and opined that his hearing loss is not caused by, or a result of, military noise exposure because his hearing was normal at entrance and separation examination. Even if disabling hearing loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Furthermore, the lack of any evidence showing the veteran had hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ." Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the Veteran has a current hearing loss disability, which is causally related to noise exposure during service. Given that the April 2008 VA examiner's opinion that the Veteran's hearing loss is not related to in-service noise exposure is premised entirely on the fact that audiological testing during his separation examination did not show hearing loss, new VA examination should be provided to determine whether his current bilateral hearing loss is casually related to noise exposure during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159 (c); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Hensley, supra. The appellant is hereby notified that it is his responsibility to report to any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA audiological examination to determine the etiology of his bilateral hearing loss disability. The examiner should conduct all necessary audiological testing and elicit a history of the claimed disability from the Veteran. The examiner is to provide an opinion as to whether it is at least as likely as not that any currently diagnosed bilateral hearing loss disability is related to noise exposure during service. The examiner must accept as fact that the Veteran was exposed to acoustic trauma during service. A complete rationale should be provided for all opinions and the examiner's rationale cannot be premised solely on the fact that the Veteran's August 1967 separation examination did not show hearing loss. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Thereafter, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If it remains denied, the RO/AMC should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ M. E. LARKIN 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) (2011).