Citation Nr: 1303482 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-34 589 ) 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. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from February 1961 to January 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, a travel board hearing was held before the undersigned in Des Moines, Iowa. A transcript of the hearing is associated with the Veteran's 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 Review of the records shows that the Veteran contends that his bilateral hearing loss is the result of constant exposure to artillery fire while he was on active duty. It is pointed out that the Veteran served with an artillery unit during service. The Veteran stated that he noted the hearing loss soon after service while working as a plumber, an occupation with far less noise exposure. An audiometric evaluation was conducted by VA in November 2007. At that time, the examiner was requested to render an opinion regarding whether it was at least as likely as not that the Veteran's current hearing loss was the result of noise exposure while he was on active duty. After examination and review of the record, the examiner opined that the hearing loss was not caused by or a result of military noise exposure. The rationale given was the fact that the audiometric evaluation in January 1964 was within normal limits in both ears. The examiner did not, however, address the Veteran's assertion of continuity of symptomatology since service. The United States Court of Appeals for Veterans Claims (Court) has held that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2012). Taking into account the Veteran's statements in support of his claim, as well as the November 2007 VA examination report that shows bilateral sensorineural hearing loss, the Veteran's claim of service connection should be remanded for an additional VA examination so as to determine whether any currently-diagnosed hearing loss is etiologically-related to his period of active service, primarily exposure to artillery fire during service. With regard to the VA audiological examination, the Board notes that the requested VA opinion must be consistent with the ruling in Hensley. As such, the examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes at the time of separation from service when forming an opinion. If the aforementioned is the basis, or crux, or the examiner's rationale, the opinion would be inadequate on which to base a decision. Accordingly, these issues are REMANDED for the following actions: 1. The RO/AMC shall schedule a VA audiological examination so as to assess the nature and etiology of the Veteran's currently-diagnosed hearing loss. The examiner should specifically indicate whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or a speech recognition score using the Maryland CNC Test of less than 94 percent). The examiner must provide an opinion as to whether any identified hearing loss is at least as likely as not etiologically-related to his military service. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. Following a review of the claims folder, the examiner should address the following: Whether it is at least as likely as not that hearing loss originated during active service, or is otherwise related to active service. 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. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should also note in his or her opinion that a review of the claims file was conducted, and must discuss pertinent evidence within the claims file. Consideration must be given to the Veteran's assertion of continuity of symptomatology. Further, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. § 3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate. If it is the opinion of the examiner that the Veteran's current bilateral hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. The RO/AMC should review the examination report to ensure that they contain all information and opinions requested in this remand and that any recommended additional examination and testing has been conducted. 3. If any claim on appeal remains denied, the RO/AMC should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ MATTHEW D. TENNER 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).