Citation Nr: 1309720 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-17 584 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran had active duty for training (ADT) from March 1966 to July 1966, active duty from February 1968 to May 1968, and a verified period of ADT in May 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the RO in St. Petersburg, Florida that in pertinent part, denied service connection for bilateral hearing loss. In July 2012, the Veteran submitted additional pertinent evidence to the Board and waived his right to have the RO initially consider it. 38 C.F.R. § 20.1304. 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 claim for service connection for bilateral hearing loss requires further development before being decided on appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). And although the Board sincerely regrets the additional delay that will result as a consequence of this remand of this claim, the additional development of the claim is necessary to ensure there is a complete record upon which to adjudicate this claim and to afford the Veteran every possible consideration. The Veteran contends that he incurred bilateral hearing loss due to acoustic trauma from artillery during service. Recent VA medical records reflect that the Veteran has been treated for bilateral sensorineural hearing loss and has been given hearing aids. For purposes of applying the laws administered by VA, impaired hearing will only be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold 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. That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). The results of the Veteran's March 2009 VA audiological examination confirm he has sufficient hearing loss in each ear to be considered a ratable disability according to the requirements of 38 C.F.R. § 3.385. The question remaining is whether his current bilateral hearing loss disability is related to service. Although a VA audiological examination was conducted in March 2009, the Board finds that the VA examination report is inadequate, and the claim must be remanded for another VA medical opinion with an adequate rationale. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must provide an adequate one, or notify the claimant why one will not or cannot be provided); and see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The Court has indicated that that it is not mere review of the claims file that is determinative of the probative value of an opinion, rather, more so the discussion of the underlying medical rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). And the VA audiology examiner's March 2009 medical opinion is based on an inadequate rationale as the examiner based her negative medical nexus opinion solely on the fact that the Veteran's hearing was normal on audiological testing during his discharge examination, which is contrary to the Court's holding in Ledford, supra. The Veteran's DD Forms 214 reflect that he served in the Army National Guard and his primary military occupational specialty (MOS) was that of a field artilleryman. Moreover, the evidence reflects that the Veteran and his wife have each stated that he had hearing difficulty ever since 1968. The Veteran is competent to say he has had difficulty hearing for many years, and his wife is competent to say that she recalled his hearing difficulty "within about a year and a half to two years" after his discharge from service. See her April 2009 letter. The Board finds that these statements are both competent and credible. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). However, sensorineural hearing loss, as an organic disease of the nervous system, is such a chronic condition under 38 C.F.R. § 3.309(a). Moreover, the Veteran has reported that his only exposure to excessive noise was during service, when he was around Howitzers for lengthy periods. He has testified that after service, he worked at the post office for many years, during which he was not exposed to loud noise. Service personnel records show that he was in a field artillery unit. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (service treatment records, etc.)). On remand, the VA examiner must consider the Veteran's reports of noise exposure during his periods of service from 1966 to 1968, as well as his statements regarding the lack of noise exposure after service. The examiner should also consider the June 2005 report of a private audiological examination showing hearing loss. This report reflects that the Veteran suspected that his hearing loss was due to military service. He reported that his hearing loss began 10 years earlier. It appears that there may also be additional outstanding private medical records. In her April 2009 letter, the Veteran's wife reported that 10 years ago (i.e., in 1999), the Veteran received private treatment for bilateral hearing loss, and was given ineffective hearing aids by a local hearing center. On remand, the RO/AMC should attempt to obtain these private medical records. Any additional relevant medical records, not currently on file, should be obtained and considered. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Write to the Veteran and ask him to provide the names and addresses of all medical care providers who have treated him for hearing loss since separation from service, including the private provider referenced in the April 2009 letter by the Veteran's wife. With any necessary authorization, obtain all identified records that are not already in the claims file. Documentation of all efforts to obtain such evidence should be of record, and the Veteran provided notice of any inability to obtain any specified records. 2. Then, forward the Veteran's claims file to the examiner who provided the March 2009 VA medical opinion, and obtain another medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current bilateral hearing loss is related or attributable to his military service in the late 1960s - and, in particular, to his reported noise exposure in his military occupational specialty (MOS) as an artilleryman. The examiner must review the claims file, including all lay and medical evidence of record, and specifically including the June 2005 report of a private audiological examination (located in the Veteran's electronic Virtual VA folder), the April 2009 statement of the Veteran's spouse, and the Veteran's July 2012 Board hearing testimony, and then indicate in the examination report that the claims file was reviewed. The examination report must include discussion of the rationale for all opinions expressed and conclusions reached, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file. The examiner may consider the absence of any objective indication of hearing loss, such as on an audiogram, at any earlier date as one of the reasons for disassociating any current hearing loss from the Veteran's military service, just not as the sole reason for this disassociation. 3. Then readjudicate the claim in light of all additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of this claim. 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. 2012). _________________________________________________ S. L. Kennedy 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).