Citation Nr: 1310049 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-24 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision which was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his son testified before the undersigned Veterans Law Judge via a videoconference hearing from the RO in November 2011. A transcript of the hearing has been associated with the claims file. In a February 2012 decision and remand, the Board reopened the claims for entitlement to service connection for bilateral hearing loss and tinnitus, and remanded the claims for further development. In an October 2012 rating decision, the RO granted service connection for tinnitus. Accordingly, that issue is no longer before the Board. The Board has reviewed the Veteran's Virtual VA file and finds there are no additional records relevant to this claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 the additional delay, remand is necessary to obtain an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection may still be established if medical evidence shows that it is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Veteran asserts that he currently has bilateral hearing loss as a result of noise exposure while working as a machinist's mate during service. He reports continuous noise exposure from these duties, as well as from sleeping near the engine room. The Veteran has reported no post-service noise exposure, stating that he worked as an optician for approximately 65 years. He states that he has had hearing difficulties since service. In the February 2012, the Board conceded some sort of degree of noise exposure during service. The Board noted, however, that, there was no indication of hearing difficulties in his February 1946 evaluation upon discharge from service, although puretone thresholds were not recorded at that time. The Veteran asserts that he has had hearing loss continuously since service, although he did not seek service connection for many years. He states that he was previously unaware that he could receive VA benefits. In an attempt to corroborate the Veteran's claims, the Veteran's wife submitted a statement in January 2003 indicating that they had been married for 55 years (or since 1948), and she had observed his hearing difficulties and heard his frequent comments about ringing in the ears. She also stated that she and the Veteran both believe that the noise from the engine room during service caused his hearing difficulties. Similarly, the Veteran's son testified in November 2011 that the Veteran has had hearing difficulties as long as he can remember, including in the 1960's when he was 8-10 years old, and that the Veteran had also complained of ringing in the ears. Concerning treatment, the Veteran states that he sought hearing aids a few times in the past, but these private providers are now deceased and their records are unavailable. The Veteran has provided audiograms from several private providers, including at least one provider who is now deceased (Dr. Brenham), dated in 1986, 1995, 2002, and 2009. He also states that he attempted to obtain hearing aids from the VA facility, but his appointment was cancelled due to a snow storm and he was unable to get another appointment for another year, so he went to a private provider to get his own hearing aids. The Veteran has submitted a VA appointment notice concerning a 2003 appointment. The Board notes that the Veteran has submitted a January 2010 opinion from his private provider indicating that his current hearing loss and tinnitus were incurred during service. However, it does not appear that this provider reviewed the Veteran's prior medical records, including but not limited to service records. See, e.g., Barr, supra. (indicating that an examination or medical opinion should consider the records of prior medical treatment so that the evaluation of the claimed disability will be a fully informed one). As such, this opinion is insufficient to establish entitlement to service connection. Pursuant to the February 2012 Board remand, the Veteran was afforded a VA examination in March 2012. At the time, the examiner indicated that they had reviewed the claim file thoroughly including past hearing tests. After an examination of the Veteran, the examiner opined that his "hearing loss is less likely than not caused as a result of noise exposure while in the military. There is no evidence of a hearing loss while in the service or within a year of discharge. The first audiogram available was in 1995 indicating a hearing loss at that point. However, this is many years after he left the service." The same examiner opined that the Veteran's tinnitus was due to service based on the Veteran's reports of tinnitus in service and his in-service noise exposure. Upon review of the opinion above, the Board finds that the opinion is inadequate for appellate review. Indeed, the examiner notes that the first post-service audiogram of record is from 1995. However, as noted, a review of the record shows that there is a private audiogram from as early as 1986. Given the examiner's opinion, the Board cannot be certain that a complete and thorough review of the claim file was conducted. Furthermore, the Board is troubled by the examiner's lack of mention of the lay evidence concerning hearing loss since service. The VA has conceded that the appellant experienced acoustic trauma in service as a result of his military duties. As noted, it is not necessary that hearing loss be factually shown during service. Hensley, as noted above, does not require this. However, it appears from the examiner's opinion, that the lack of in-service hearing loss was one of the main factors considered. This is especially troubling when the examiner herself, in the examination report, states that the separation audiology test conducted was one that is not sensitive to high frequencies. Finally, as noted, the Veteran submitted a private audiologist's opinion stating that hearing loss is due to service, however, the March 2012 examiner made no mention of that opinion. In this case, what is clear is that the appellant was exposed to acoustic trauma during service, the same was conceded by the Board. The March 2012 examiner has determined that the acoustic trauma resulted in the development of tinnitus, and the appellant now suffers from bilateral hearing loss. The examiner has not discussed the applicability of Hensley nor has the examiner fully explained why the appellant's inservice acoustic trauma did not lead to the development of bilateral hearing loss. Because this information is not currently included in the claims folder, the Board opines that another examination is in order. Finally, the Board notes that in the March 2012 remand, the examiner was ordered to consider the lay statements of continuity of symptomatology as well as the January 2010 private nexus opinion relating hearing loss to service. Given the above opinion, and lack of discussion of any lay evidence or the private opinion, the Board finds that the examiner did not comply with the orders of the prior remand and the claim must be remanded for full compliance. See Stegall v. West, 11 Vet. App. 268 (1998), (a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.) Under the circumstances described above, additional development of the appellant's claim must be accomplished. Such development will ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to his claim, in accordance with the VCAA, and to ensure full compliance with due process requirements. Hence, this case must be REMANDED to the RO/AMC for the further development of evidence. (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. The appellant once again should be afforded a VA audiological examination. The claims folder should be provided to the examiner for review in conjunction with the examination. If possible, the examination should not be performed by an individual who has previously examined the appellant. After reviewing the file, the examiner must state whether the appellant reports a continuity of hearing problems since service and acknowledge such statements made by the appellant, his wife and son, in offering the opinion. All lay statements of record and the January 2010 private opinion must be considered and discussed by the examiner. The examiner should then render an opinion as to whether it is at least as likely as not that the appellant's current bilateral hearing loss is related to his previously conceded acoustic trauma in service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. If further testing or examination by specialists is required to evaluate the claimed disability, such testing or examination is to be done before completion of the examination report. The results proffered by the examiner must reference the complete claims folders including all lay statements and the private opinion of record. If the examiner concludes that the appellant's bilateral hearing loss was not caused by inservice acoustic trauma, the examiner must provide a detailed analysis as to why such trauma would cause tinnitus but would not cause bilateral hearing loss. Also, it is requested that the results of the examination be typed or otherwise recorded in a legible manner for review purposes. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the requested development has been conducted and completed n full. If the examination reports does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the deficient report must be returned for corrective action. If any other needed development is incomplete, appropriate corrective action is to be implemented. 8 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO should conduct any additional development deemed warranted and readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and his private attorney should be provided an SSOC regarding the issue on appeal. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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). _________________________________________________ C. TRUEBA 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).