Citation Nr: 1237267 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-28 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1964 with subsequent service in the Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board for additional development in May 2010, April 2011 and January 2012. The issues of service connection for rheumatoid arthritis, a bilateral foot disability, a back disability and a bilateral knee disability have been raised by the record per an October 2012 statement by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue of service connection for bilateral hearing loss must be remanded for further development. The Veteran claims that he is entitled to service connection for bilateral hearing loss because it is the result of exposure to excessive noise in service. Specifically, in an April 2007 statement, the Veteran alleges in-service exposure to rifle, machine gun, and Howitzer fire. He also stated that at no time was ear protection provided. Service personnel records reflect that the Veteran's military occupational specialty (MOS) was that of a weapons infantryman during his active service. Thus, the Veteran's service records support his claims of in-service noise exposure. Service treatment reports reflect no complaints or findings related to hearing loss upon the Veteran's enlistment into active service and during his active service. A February 1962 entrance examination reflects audiometric testing consisted of a whisper voice test and each ear was valued at a 15 out of 15. In a January 1964 separation examination, audiometric testing was performed which revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 10 LEFT 10 5 5 5 10 Prior to November 1967 audiometric test results were reported under American Standard Associates (ASA) values. When converted to the current International Standards Organization (ISO) values which have been used after November 1967, audiometric findings from the January 1964 separation examination revealed hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 15 LEFT 25 15 15 15 15 No abnormal findings of the ears or drums were noted at that time and the Veteran reported no history of hearing loss or ear trouble in the January 1964 Report of Medical History. The Veteran submitted an October 2003 private audiology report in which the audiometric testing was performed and recorded in graphical audiometric findings and reflects some hearing loss, however, it is unclear as to the exact values of the hearing thresholds for each of the frequencies. The audiologists graphical information does indicate that hearing threshold values were within the range of normal hearing at 500 Hertz and 1000 Hertz for both ears and increased into the mild to moderate hearing loss range at 2000 to 4000 Hertz in both ears. In addition, the findings do not reflect whether word recognition scores were recorded and do not indicate any evidence of a nexus to the Veteran's noise exposure during his active service. A July 2007 VA examination report reflects that the Veteran has bilateral hearing loss for VA purposes. The examiner opined that, because the military hearing evaluation at discharge reveals normal hearing, any hearing loss that the Veteran has occurred after his military service and would not be related to military service. The Board remanded this claim in January 2012 for a new VA examination and opinion with an appropriate rationale, noting that the law does not necessarily require that hearing loss manifest in service, per the current case law and VA training letters cited below. The remand also noted it would be helpful that the examiner discussed his/her own expertise regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. At a May 2012 VA examination, the Veteran was provided audiometric testing and diagnosed with sensorineural hearing loss in the frequency range of 500 to 4000 Hertz, in both ears. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. She then opined that the thresholds in service were so low at separation that threshold shifts for VA purposes from enlistment to separation would not have been plausible even in the absence of pure tone information at enlistment. The examiner also cites to an Institute of Medicine study from 2006, noting that hearing loss from noise injuries occurred immediately following noise exposure and there was no scientific basis to conclude that permanent hearing loss was directly attributable to noise exposure would be delayed or late onset in nature or develop after such exposure. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. Based on the foregoing, the Board observes that the Veteran's hearing threshold levels at his separation from service, when converted to ISO values, indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In addition, the Board finds that the VA examiner's opinion was based on incorrect information, including the Veteran's hearing threshold levels at his separation examination which she had noted to be so low at separation, do not appear to account for the conversion of these levels to ISO values prior to the examiner's assessment. In addition, the Institute of Medicine study from 2006 appears to be in conflict with current VA case law and the Training Letter cited above. As such, the Board finds this opinion is inadequate. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the Board finds that this matter should be remanded for a new and adequate VA etiology opinion, for the purpose of determining whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years. Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the claims file to be forwarded to a VA examiner other than the one who last performed the May 2012 VA examination of the Veteran's bilateral hearing loss, to review the claims file. The claims file, to include a copy of this remand, must be made available to the examiner for review in conjunction with the examination. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. The examiner is also advised to please read this remand carefully. (a). The examiner is asked to please note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). (b). The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) the currently diagnosed bilateral hearing loss: (i) had its onset during the his period of active duty from February 1962 to February 1964; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. the conceded exposure to noise in service)? Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the record must indicate whether the notification letter was returned as undeliverable. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran (and his representative, if any) should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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. 2011). _________________________________________________ L. M. BARNARD 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) (2012).