Citation Nr: 1311252 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 11-14 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant, his spouse, and D. M. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 1955 to September 1957 and from October 1961 to August 1962. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the St. Paul, Minnesota Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied reopening of a previously denied claim for service connection for bilateral hearing loss. In a September 2012 decision, the Board granted reopening of a claim for service connection for bilateral hearing loss. The Board remanded the reopened claim to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. At this time, the Board is again REMANDING the appeal to the RO via the AMC. VA will notify the appellant if further action is required. 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). REMAND The Board finds that the one or more aspects of the instructions in the September 2012 Board remand have not been fulfilled. The United States Court of Appeals for Veterans Claims (Court) has ruled that the Board has a duty under law to ensure that the RO complies with remand orders of the Board or the Court. Stegall v. West, 11 Vet. App. 268 (1998). The Board therefore is remanding the claim again for compliance with the remand instructions and for the development of additional evidence. The Veteran contends that his current bilateral hearing loss was caused by acoustic trauma during service. In the 2012 remand, the Board found that a prior, 2010 VA examination and opinion was inadequate. The Board explained that the examiner found that 1955 testing showed that the Veteran's hearing was normal upon entry into service. The examiner, however, failed to account for historical changes in the measurement of hearing. Military audiograms conducted prior to November 1967 were reported in American Standards Association (ASA) units. VA used ASA units prior to July 1966, but in July 1966 VA adopted International Organization for Standardization (ISO) units. The military began using ISO units in November 1967. The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. Thus, the 2010 VA examiner reviewed a pre-induction audiogram performed in December 1955 and reported that it showed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 n/a 15 LEFT -10 5 -10 n/a 15 When converted from ASA to ISO units, however, the December 1955 audiogram would read: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 30 n/a 20 LEFT 5 15 0 n/a 20 Further, the Board noted that a January 1956 service clinical record shows that the Veteran was assigned an H2 profile, meaning that his hearing imposed some limitations on classification and assignment. In the 2012 remand the Board instructed that the Veteran receive a VA audiological examination. The Board indicated that the examiner was referred to the discussion of conversion of 1955 audiometric results. The Board asked that the examiner provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss disability was either caused or aggravated by his service. The Board asked that the examiner comment on the significance, if any, of the threshold shifts that occurred between the Veteran's December 1955 and January 1956 audiograms. The Veteran had a VA audiological examination in October 2012. The examiner stated that the Veteran's enlistment audiogram showed normal hearing bilaterally. In so stating, the examiner did not address the conversion from ASA to ISO units. The examiner provided the opinion that it is not at least as likely as not that the Veteran's hearing loss was caused by his service. The examiner did not provide an opinion as to whether it is at least as likely as not that the Veteran's hearing loss was aggravated by his service. The examiner did not comment on the significance, if any, of the threshold shifts that occurred between the Veteran's December 1955 and January 1956 audiograms. The examiner stated that if further opinion was needed, she would defer to an ear, nose, and throat (ENT) specialist. Another remand is required to address the issues raised in the 2012 remand that were not addressed in the October 2012 examination and opinion. As the 2012 examination gathered current testing data regarding the Veteran's hearing, a review of the claims file with a new opinion will suffice. An ENT physician should review the file. That physician should address the conversion from ASA to ISO units of military audiological testing performed before 1967 (in the Veteran's case the 1955 and 1956 testing). The physician should provide an opinion as to whether it is at least as likely as not that the Veteran's hearing loss was caused by his service, and an opinion as to whether it is at least as likely as not that the Veteran's hearing loss was aggravated by his service. The physician should comment on the significance, if any, of the threshold shifts that occurred between the Veteran's December 1955 and January 1956 audiograms. In addition, the Board notes that the opinion of the 2010 examiner relied on findings that VA testing in 2007 and 2010 showed conductive hearing loss and not sensorineural hearing loss. Review of 2007 and 2010 VA hearing examination reports, however, reveals that in each case the examiner diagnosed mixed (conductive and sensorineural) hearing loss. The physician who reviews the claims file pursuant to this remand should be asked to comment on whether the evidence indicates that the Veteran's hearing loss at the time of 2007 and 2010 testing was conductive only, sensorineural only, or mixed. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The RO should provide the examiner who will review the file in conjunction with this remand all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded 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. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The AMC or RO is to review the electronic file. With all documents contained therein deemed to be relevant to the remanded claim and not duplicative of the documents already found in the paper claims file, take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinician who is asked to review the claims file and provide medical findings in conjunction with the development requested herein. 2. Provide the Veteran's claims file to a VA ENT physician for review. Ask the physician to take into account that military audiograms performed before November 1967 (such as audiograms of the Veteran in 1955 and 1956) must be converted from ASA to ISO units. Ask the physician to comment on the significance, if any, of the threshold shifts that occurred between the Veteran's December 1955 and January 1956 audiograms. Ask the physician to state whether the Veteran's hearing loss shown on VA testing in 2007 and 2010 was conductive only, sensorineural only, or mixed. Ask the physician to provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran's hearing loss was caused by his service. Ask the physician to provide an opinion as to whether it is at least as likely as not that the Veteran's hearing loss was aggravated by his service. Ask the examiner to explain the reasoning leading to each opinion provided. 3. Thereafter review the expanded record and reconsider the claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the claim. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).