Citation Nr: 1302121 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-02 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active military service from June 1970 to June 1972, and service in the Nevada Air National Guard from 1972 to 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified before the undersigned Veterans Law Judge in November 2011. The Veteran also provided testimony before a Decision Review Officer at the RO in October 2010. A transcript of those proceedings have been associated with the claims file. 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 service connection for bilateral hearing loss. He contends that his current hearing loss is related to in-service noise exposure, and specifically, to his duties as an Aircraft Maintenance Specialist. See DD Form 214. The Veteran has testified that he began to experience hearing loss within one-year after his separation from active duty service in 1972, but while still serving in the Air National Guard (1972 to 1976), and that he has suffered from continuous, and progressively worsening hearing loss since that time. See Hearing Transcript, p. 3. As an initial matter, the Board notes that the claims file does not contain any service records from the Veteran's period of service with the Nevada Air National Guard. See Original Claim, August 2009. As the Veteran contends that he experienced hearing loss within one year of separation, and notably, while still in the National Guard, the RO should attempt to obtain any service treatment records relating to such service upon remand. Private treatment records associated with the claims file indicate that the Veteran was diagnosed with, and treated for (by way of radiation and chemotherapy) squamous cell carcinoma of the nasopharynx in 2005. Notably, these records also reflect that the Veteran had decreased hearing prior to his treatment for nasopharynx cancer, and that noted side effects of the chemo/radiation therapy expressly excluded hearing loss. (Emphasis added). See, e.g., May 2005 Radiation Therapy Consultation Note. Keeping the above facts in mind, the Veteran was afforded a VA audiological examination in February 2010 in order to determine the nature and etiology of his bilateral hearing loss. The VA examiner opined that the Veteran's current hearing loss was less likely than not due to military service "based on normal hearing levels at enlistment and discharge." He went on to state that his hearing loss was more likely due to radiation and chemotherapy received for nasopharyngeal cancer as well as post-military noise exposure. Here, the Board notes that although hearing loss is not shown in service or at separation from service, service connection can still be established if medical evidence shows that it is actually due to incidents during service. 38 C.F.R. § 3.303(d); see also Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, both the Veteran and his wife have competently testified that his hearing loss was present prior to the treatment received for nasopharyngeal cancer in 2005. A private treatment record confirms this assertion. Moreover, the Veteran has consistently reported that his hearing loss began shortly after his separation from service in 1972. In addition, he has expressly denied any significant post-service occupational noise exposure (i.e., he was a plumber and a bartender following service). In light of the foregoing, the Board finds that the February 2010 VA audiological opinion is inadequate for purposes of determining service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus another VA audiology examination should be afforded to the Veteran to determine the nature and etiology of his defective hearing. Accordingly, the case is REMANDED for the following action: 1. Contact the Nevada Air National Guard, or other appropriate source, to obtain any service treatment records in their possession pertaining to the Veteran's period of active duty from 1972 to 1976. Notify the Veteran of all efforts to obtain these records. All efforts to obtain such records must be documented and associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss disability. The claims file and a copy of this remand must be made available to the examiner for review and the examiner must indicate in the examination report that this has been accomplished. All indicated tests and studies should be accomplished. The Veteran's history should be documented. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's current hearing loss disability is causally related to exposure to acoustic trauma during his military service. Any opinion expressed should be accompanied by a complete rationale. If an opinion cannot be provided without resort to mere speculation, the examiner should so state and should explain why the opinion cannot be provided without resort to mere speculation. The examiner is specifically asked to address the Veteran's contentions that his hearing loss was present shortly after separation from service in 1972, and thus, prior to his treatment for nasopharyngeal cancer in 2005, as well as the May 2005 private treatment report which notes that decreased hearing was present prior to the commencement of chemotherapy or radiation therapy in 2005. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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).