Citation Nr: 1317406 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 11-13 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to April 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for hearing loss. The Veteran had a hearing before the Board in October 2012 and the transcript is of record. 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 The Veteran claims service connection for hearing loss. He served in the Navy as a motor machinist mate. He reports noise exposure during active service and available service records, including his separation papers, confirm his military duties. Service treatment records do not indicate any complaints, treatment, or diagnoses related to hearing loss. The Veteran, was never provided an audiological examination in the military. Rather, entrance and separation examinations merely reveal 15/15 (normal) whisper voice and spoken voice tests. He states that he believes his hearing loss began in the military, but was happy to go home and did not really complain about it on separation. After service, the Veteran testified he worked in production at American Motors factory for 30 years. Therein, he indicated he wore hearing protection whenever he was around loud machinery, but for the most part he did not have to wear hearing protection because he was not around anything other than "regular factory noise." His reports of noise exposure on VA examination are slightly different, indicating 30 years of noise exposure during factory work with hearing protection being used during the final 10 years. The Veteran was afforded a VA examination in November 2009; he complained of asymmetric hearing loss, left worse than the right, gradual in nature. The examiner noted in-service and post-service noise exposure opining that the Veteran's hearing loss is "less likely as not" related to his military service as the separation examination showed a normal whisper and spoken voice test and such a test would have detected the Veteran's current level of hearing loss. The examiner further noted no scientific basis to support "delayed onset" of hearing loss. The examiner heavily relied on the fact that the medical evidence in this case is incredibly scarce until 2003, nearly six decades after service. In contrast to the above report the Veteran has testified that he had continuous symptoms of hearing loss since service. For example, in an October 2003 private audiological examination, the Veteran complained of longstanding hearing loss noticing his left ear worse than the right "over the last 20 years." He was diagnosed with longstanding asymmetric high frequency hearing loss, left worse than the right. In November 2012, the Veteran told another private audiologist he noticed difficulty hearing before he was married in 1956. His wife indicated she has always had to sit on the Veteran's right side to be heard. His wife further testified at the hearing before the Board that the Veteran was diagnosed with hearing loss by a private doctor 50 years ago. To that end, the Veteran also indicated receiving periodic hearing tests during his employment with American Motors. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In March 2013 the Board remanded the case for another VA examination and medical opinion. The examination report does not indicate that the examiner considered that: VA has conceded in-service noise exposure based upon the Veteran's documented military duties or the Veteran and his wife's description of symptoms in-service and thereafter. Such consideration was required by the prior remand. Remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds the VA examination opinion in this case inadequate as it related to incomplete facts and does not consider the lay evidence with regard to onset of hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Return the claim to the examiner who conducted the April 2013 VA examination of the Veteran. If the same examiner is not available, the file should be reviewed by a medical professional of the appropriate experience and specialty to offer an opinion in hearing loss claims. The examiner should review the evidence of record including the claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders. The examiner must state an opinion whether it is at least as likely as not (50 percent probability or greater) that any hearing loss is attributable to in-service noise exposure, injury, or in-service duties as a motor machinist mate. The examiner must provide a complete rationale for any opinion expressed. The examiner is to reconcile any opinion expressed with the other medical evidence The examiner must specifically address: the Veteran's in-service noise exposure, the Veteran and his wife's descriptions of symptoms in-service and thereafter, and his occupational noise exposure in the medical opinion. If an opinion cannot be made without resort to speculation, the examiner is to provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Then, readjudicate the claim for service connection for hearing loss on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case (SSOC) and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).