Citation Nr: 1311366 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 12-09 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 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 In order for service connection to be granted, the evidence must first show that a claimant has the disability in question. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet.App. 223 (1992). VA defines impaired hearing as a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds 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 (2012). The evidence as to whether the Veteran has claimed bilateral hearing loss is uncertain. In October 2011, a private audiologist, Dr. Craig Foss diagnosed bilateral sensorineural hearing loss. Dr. Foss reported pure tone averages for 1000, 2000, 3000, and 4000 hertz as decibel readings of 28.75 for the right ear and 23.75 for the left ear. Although Dr. Foss included an audiometric test result in chart form, there is no indication on the report of how he came to his findings. However, the Veteran had a VA audiological examination in February 2012. The VA examiner diagnosed the Veteran with normal hearing in the right ear and sensorineural hearing loss in the range of 6000 Hertz in the left ear, which is not considered hearing loss under VA standards. See 38 C.F.R. § 3.385. In short, Dr. Foss has diagnosed bilateral hearing loss and the VA physician diagnosed left ear hearing loss which is not within the regulatory criteria of 38 C.F.R. § 3.385. The question of a connection, or "nexus" to service is also uncertain. After discharge from service, the Veteran admitted to wearing hearing protection devices while working in manufacturing. Dr. Foss noted in October 2011 that "it is quite likely that the noise exposure [the Veteran] suffered during [his] military service was the beginning of [his] hearing loss and tinnitus." Dr. Foss based his opinion, in part, on a review of "some of" the Veteran's "service and military records." Dr. Foss stated that the Veteran reported being exposed to the noise of rifles and loud jet engines during his military service. After discharge from service, the Veteran alleged that he wore hearing protection devices while working in manufacturing. Dr. Foss did not, however, specify what records he reviewed, or how he came to his opinion given what the service treatment records reveal. The Veteran had three audiological examinations while in service - November 1965 (Induction); April 1969; and November 1969 (Separation). In the Induction examination, the Veteran was diagnosed with hearing loss in his right ear. During this examination, the Veteran denied having any current or past ear, nose, or throat trouble. See Induction examination. The April 1969 audiometric testing reflected normal hearing in both ears, and the examiner estimated that the Veteran's hearing was "good." Similarly, in the Separation examination, audiometric testing revealed normal hearing in both ears. During this examination, the Veteran denied having any current or past hearing loss. See Separation examination. The February 2012 VA examiner opined that the Veteran's hearing loss did not pre-exist service and was not caused by or a result of an event in military service. Additionally, on the basis of his 38 years of professional experience as a licensed clinical audiologist, the VA examiner opined that the Induction and Separation tests "are not valid measures of true organic hearing" because it has been well documented in the professional literature that noise-induced sensorineural hearing loss does not improve appreciably over time. The VA examiner concluded that the results on the Veteran's induction examination are probably a result of an unidentified artifact in the Veteran's ear at the time of testing, improper calibration of testing equipment, or the Veteran had a temporary middle ear pathology at the time of testing. Given these uncertainties, the case is REMANDED to the RO/AMC for the following action: 1. Secure and associate with the claims folder the missing pages from the December 2011 VCAA letter and the February 2012 rating decision - if necessary, readvise the Veteran under VA's duties to notify pursuant to the VCAA. Contemporaneously with this effort, ask the Veteran to (a) identify all records of VA and non-VA health care providers who have provided any medical treatment relevant to the claim on appeal, and (b) provide an account of his employment history since service. After obtaining appropriate authorizations for release of medical information, obtain the relevant and previously unobtained records from each health care provider the Veteran identifies. Advise the Veteran that with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. The records sought must include any relevant records of VA or private treatment created or updated after the most recent medical evidence associated with the claims folder from October 2011. 2. Request the Veteran's complete personnel file from the appropriate Federal or State custodians for his entire time in the U.S. Air Force from February 1966 to December 1969. 3. Schedule the Veteran for a clarifying VA audiometric examination to determine the nature and likely etiology of the claimed hearing loss, to be conducted by the audiological examiner who conducted the February 2012 VA examination. If that examiner is unavailable, schedule the Veteran for an examination to be conducted by another qualified audiologist. The following considerations will govern the examination: a. Interpret the October 2011 audiology tests obtained by Dr. Foss in graph form as mandated by 38 C.F.R. § 3.385. b. All indicated tests must be performed. The examination must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometric test. For each ear, pure tone audiometric thresholds, in decibels, must be recorded for each of the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz, as well as controlled speech discrimination testing (Maryland CNC) (reported in percentages of discrimination). The examiner must also obtain the Veteran's employment history as it related to his claimed bilateral hearing loss after discharge from service. c. The examiner's attention is called to the following: Service entrance, service treatment, and separation examination reports; Dr. Foss' October 2011 medical opinion VA examination of February 2012. d. The VA examiner must provide an opinion as to whether the Veteran currently has bilateral hearing loss, and if so, the examiner must provide an opinion as to whether the current hearing loss is related to injury or disease or other event in service. THE EXAMINER MUST REPORT WHETHER THE HEARING TEST RESULTS ARE INTERNALLY CONSISTENT WITH OTHER TEST RESULTS THEN OBTAINED; and WHETHER THE VETERAN'S RESPONSES TO TESTING ARE RELIABLE GIVEN ALL OTHER EVIDENCE OF RECORD. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. e. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must 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. After undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, 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). 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). _________________________________________________ VITO A. CLEMENTI 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).