Citation Nr: 1312907 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-46 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran's appeal had originally included the issue of entitlement to service connection for tinnitus; however, during the pendency of the appeal, the RO granted that benefit in an October 2010 rating decision. Accordingly, the issue of entitlement to service connection for tinnitus no longer remains in appellate status, and no further consideration is required. The Virtual VA eFolder has been reviewed. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran contends that he currently has hearing loss due to noise exposure during his military service. Specifically, in his December 2009 claim, he reported that he was part of a transportation company during Vietnam and was assigned to a machine gun crew. His service personnel records do show that he served in Vietnam and was a motor vehicle operator. Moreover, the Veteran is competent to report a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report observations that come to him through his senses). The Veteran was afforded a VA examination in September 2010 during which he reported being exposed to machine gun noise during service. He also indicated that he worked around railroad engines for 25 years following his military service. Audiometric testing showed a hearing loss disability for VA purposes in both ears. However, the examiner opined that it was not as likely as not that his current hearing loss was related to his military service. Although he stated that the Veteran was likely exposed to high noise levels in the military, the examiner also observed that the Veteran had normal audiometric evaluation at the time of his separation from service. In October 2012, the Veteran's representative argued that the examiner did not give much weight to the Veteran's account of his in-service experiences or his assertions that he began having difficulty hearing in service, which had continued to the present time. In November 2012, his representative contended that the VA examiner's medical opinion was flawed because service connection does not require hearing loss at separation. The Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that the September 2010 VA examiner did not provide any explanation for his opinion other than the lack of medical evidence of hearing loss in service. It would have been helpful had the examiner brought his expertise to bare in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from noise exposure or acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any hearing loss that may be present. In addition, the Board notes that the Veteran receives VA medical treatment. Electronic records were last uploaded in April 2012, and the record indicates that there should be treatment records in the system dated from October 2010 to April 2012. However, upon review of the Virtual VA system, the last upload only includes one page (a VA problem list). Therefore, an attempt should be made to obtain any outstanding VA medical records. 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain any outstanding VA medical records from the VA Medical Center in St. Louis, Missouri, for the period from February 2011 to the present. The procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities should be followed. All records obtained should be associated with the claims folder or Virtual VA eFolder. 2. The AMC/RO should refer the Veteran's file to the September 2010 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's current hearing loss. An additional audiology examination is not needed, unless considered necessary by the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should note that that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has claimed that he had military noise exposure while serving on active duty, to include service in Vietnam. He indicates that he began noticing difficulty hearing in service and continued to experience symptoms of hearing loss since discharge. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A complete rationale for any opinion expressed must be provided. 3. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO should implement corrective procedures. 4. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for bilateral hearing loss. All applicable laws and regulations should be addressed. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. 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). _________________________________________________ JESSICA J. WILLS 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).