Citation Nr: 1304653 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-23 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, in which the RO, in pertinent part, denied service connection for a bilateral foot condition and bilateral sensorineural hearing loss. In a January 2012 rating decision, the RO granted service connection for residuals of right and left foot injuries, representing a full grant of the benefit sought with respect to the claim for service connection for a bilateral foot condition. In May 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. 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 record reveals that further action on the claim on appeal is warranted. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination to evaluate his claimed hearing loss in January 2010. The examiner noted that a service treatment record dated in April 1977 revealed hearing within normal limits from 500 to 4000 Hertz and service treatment records dated in May and October 1982 revealed hearing within normal limits from 500 to 6000 Hertz. The Veteran complained of difficulty hearing from his left ear. He reported in-service noise exposure working in construction, indicating that he was around demolition explosions and heavy equipment. He also reported occupational noise exposure working in construction since 1983, operating heavy equipment for excavation. Audiometric testing revealed bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. The examiner opined that the Veteran's hearing loss was less likely than not related to military noise exposure, as all military examinations were found to be within normal limits. She also provided an etiological opinion regarding the Veteran's tinnitus (for which he was granted service connection in the February 2010 rating decision). The examiner stated that the rationale for her opinion was based on claims file review, audiometric data, and the Veteran's reported history. The foregoing etiological opinion regarding the Veteran's current hearing loss appears to be based, at least in part, on the fact that the Veteran had normal hearing during service. However, the absence of in-service evidence of hearing loss is not fatal to the claim for service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Because VA undertook to provide a VA examination to evaluate the claimed hearing loss, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the Board finds that a supplemental opinion is in order. The AMC/RO should arrange for the Veteran to undergo VA examination only if the audiologist who conducted the January 2010 VA examination is not available, or the designated audiologist is unable to provide the requested opinion without examining the Veteran. The record also reflects that there are additional VA treatment records which are potentially pertinent to the claim on appeal. In a March 2011 VA Form 21-526b, Veteran's Supplemental Claim for Compensation, the Veteran indicated that he would like to file a claim for service connection for hearing loss and indicated that the Boston VA Medical Center (VAMC) had his relevant treatment records. Treatment records from the Providence VAMC, dated from December 2008 to February 2010 have been associated with the claims file while treatment records from October to December 2003 have been associated with the Virtual VA e-folder. However, no records from the Boston VAMC are currently available for the Board's review. Additionally, during the May 2012 hearing, the Veteran testified that his hearing problems began in1985 or 1986, at which time he went to the VAMC for treatment. However, the earliest VA treatment record currently available for the Board's review is dated in October 2003. As any outstanding records of VA treatment are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hearing loss. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from the Boston VAMC, dated since 1985, and treatment records from the Providence VAMC, dated since 1985, between December 2003 and December 2008, and since February 2010. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the claims file, forward the claims file to the audiologist that conducted the January 2010 VA examination, if available, for a supplemental opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service noise exposure. The audiologist is advised that the absence of evidence of hearing loss in service is not fatal to the claim for service connection where there is a sound basis for attributing current hearing loss to service. The complete rationale for all opinions expressed, should be set forth in the examination report. If further examination of the Veteran is deemed necessary, arrange for the Veteran to undergo VA examination to obtain the above-noted opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and a notation to the effect that review of the claims file took place should be included in the report of the examiner. The examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ P.M. DILORENZO 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).