Citation Nr: 1315908 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-15 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). At the outset, the Board notes that service connection has been established for the Veteran's left ear hearing loss disability and tinnitus based on in-service noise exposure. Relevant to the Veteran's claim for service connection for right ear hearing loss, he was afforded a VA evaluation in August 2008. The Veteran reported his history of military noise exposure, and indicated that he has had no significant post-service noise exposure as he has worked as an insurance agent and, most recently, as a social worker. Audiometric studies revealed mild sloping to severe sensorineural hearing loss meeting VA's definition of hearing loss. 38 C.F.R. § 3.385 (2012). The examiner then opined that, although it was possible that the Veteran's current right ear hearing loss had its origins in the service, the ratio of possibility is so difficult to determine that it would be speculative. However, he did not offer a rationale for such opinion. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a remand is necessary in order to afford the Veteran a new VA examination with an adequate opinion that includes a rationale. Relevant to the Veteran's increased rating claim, he contends that his service-connected left ear hearing loss disability is more severe than the currently assigned evaluation and, as such, a compensable rating is warranted. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his service-connected left ear hearing loss disability. The Veteran was last examined by VA in August 2008; however, since that time, he has alleged an increase in the severity of his hearing loss. Specifically, in a September 2009 statement, he indicated that his hearing loss disability continues to deteriorate. As such, a remand is necessary in order to schedule the Veteran for a VA examination so as to determine the current nature and severity of his service-connected left ear hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board observes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. As such, the VA examiner should be requested to comment on the functional effects the Veteran experiences as a result of his hearing loss disability. The Board further notes that the Veteran receives treatment for his hearing loss disability at the VA Medical Center in Phoenix, Arizona. Treatment records dated only through October 2009 are of record. Virtual VA has been reviewed and there are no additional records that have been uploaded. Therefore, while on remand, the Veteran's VA treatment records from such facility dated from October 2009 to the present should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding records from the Phoenix, Arizona, VA Medical Center dated from October 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be afforded a VA audiological examination in order to determine the nature and etiology of his right ear hearing loss as well as the current nature and severity of his service-connected left ear hearing loss disability. The examiner should review the claims file. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. After a review of the claims file, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's right ear hearing loss disability is related to his in-service noise exposure. The examiner should consider any of the Veteran's lay statements regarding the continuity of symptomatology of his right ear hearing loss. The examiner should describe the functional effects caused by the Veteran's left ear hearing loss disability. He or she should also describe the impact that the Veteran's left ear hearing loss has on his employability. Any opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If either claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).