Citation Nr: 1317432 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-15 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1957 to July 1979. The Veteran had prior service in the Kansas National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. By that rating action, the RO, denied the claim for service connection for a bilateral hearing loss disability The Veteran appealed this rating action to the Board. In April 2011, the Veteran testified before the undersigned at the Wichita, Kansas RO. A copy of the hearing transcript has been associated with the claims files 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 Board finds that additional evidentiary development, as outlined in the directives below, is necessary prior to final appellate review of the claim for service connection for a bilateral hearing loss disability. A determination has been made that additional development is necessary with respect to the claim on appeal. Specifically, to schedule the Veteran for a VA audiological examination by an appropriate specialist to determine the etiology of his claimed bilateral hearing loss disability and to obtain outstanding private treatment records. Accordingly, further appellate consideration will be deferred and this case remanded to the RO/AMC for action as described below. The Veteran seeks service connection for a bilateral hearing loss disability. He contends that his hearing loss is a result of having to intercept Morse code as a Radio Intercept Operator during active military service. He also maintains that he was exposed to hostile gunfire while stationed at Na Trang Air Base in the Republic of Vietnam (RVN). (Transcript (T.) at page (pg.) 3)). He denies any post-service employment exposure, and maintains that he wears hearing protection while hunting. (T. at pg.5). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss (as an organic disease of the nervous system). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing will be considered to be 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 Court, citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet. App. 155 (1993), that it has held the above regulation, although prohibiting an award of service connection where audiometric test scores are within established limits, does not prevent a Veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. See Hensley , supra (noting that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385)). As the Veteran's Report of Separation from the Armed Forces (DD 214) reflects that his military occupational specialty was a Radio Frequency Management Superintendent and his service treatment records reflect that he served in Wiesbaden, Germany, as he has alleged, the Board finds his reports of noise exposure from having to interpret Morse Code credible and consistent with the circumstances of his military service. See 38 U.S.C.A. § 1154(a) (West 2002); Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's service treatment records reflect that the Veteran's ears were evaluated as "normal" at a July 1957 service entrance examination. An audiological evaluation was not performed at that time. The Veteran scored a 15/15 on the whisper and spoken voice test. In April 1960, the Veteran had his ears irrigated after he complained of having had wax in both of them. In August 1968, the Veteran received treatment for an infected epidermal cyst over the right auricle area that had been present for the previous few months. In April 1970, the Veteran underwent an incision and debridement of a right ear lobe cyst. Audiometric test results, dated in October 1965, April 1970, November 1973, and December 1977, and December 1978 show that the Veteran did not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385. With regard to the December 1978 examination report, in an accompanying Report of Medical History, the Veteran denied having had hearing loss. In support of his claim, the Veteran submitted a statement, prepared by K. P. R., Au.D., dated in December 2008. Mr. R. opined that the Veteran's hearing loss was probably (italics added for emphasis) consistent with his in-service noise exposure, as described to him by the Veteran. Mr. R. related that the Veteran had been exposed to gunfire and that he had continuously used headsets during his long-term military service in the United States Air Force. Mr. R. concluded that the Veteran's hearing loss was more likely than not caused by his 22 years of military experience in the Air Force. The Board observes that graphical audiometric findings contained in a private December 2008 audiogram might indicate that the Veteran's average puretone thresholds in each ear meet the criteria for a hearing loss disability. See Kelly v. Brown, 7 Vet. App. 471 (1995). It is unclear, however, whether Maryland CNC speech recognition scores were used during this evaluation in accordance with 38 C.F.R. § 3.385. The Court of Appeals for Veterans Claims (the Court) has determined that under 38 U.S.C.A. § 5103A(a) : [W]hen a private examination report reasonably appears to contain information necessary to properly decide a claim but it is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration. See Savage v. Shinseki, 24 Vet. App. 124 (2011). The Court limited its holding to "those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report." Id. In this case, the December 2008 audiometric test report contains relevant test results which potentially could be used to evaluate the Veteran's hearing disability claim. However, this private examination contains insufficient or missing data. Specifically, it contains unclear graphical representations of audiometric test results, and it fails to indicate whether the Veteran's documented speech discrimination percentages at that time were obtained using Maryland CNC testing. Because the record contains a private examination report that reasonably appears to contain information necessary to properly decide the Veteran's claim, but which is not suitable for rating purposes, and as the information reasonably contained in the report cannot otherwise be obtained, VA must seek clarification from the private examiner regarding this December 2008 examination before making a final decision on the merits. The Board finds that a remand is necessary to clarify the December 2008 private audiometric report. In addition, in light of the Veteran's competent and credible report of having been exposed to acoustic trauma and his conceded in-service acoustic trauma while serving as a Radio Intercept Operator, the Board finds that a VA audiological examination is necessary to determine whether or not the Veteran currently has a bilateral hearing loss disability for VA compensation purposes and, if so, if it is etiologically related to his in-service acoustic trauma. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Finally, the Veteran testified before the undersigned that beginning in the calendar year 2000, he sought treatment for his hearing loss at Irwin Army Hospital at Fort Riley, Kansas. These records, however, are not of record. As these records might contain information as to the etiology of the Veteran's claimed hearing loss disability, they should be secured on remand. 38 C.F.R. § 3.159(c)(1)(2012). Accordingly, the case is REMANDED for the following action: 1. Send the December 2008 private audiogram results from K.P.R. back to that health care provider, and ask him to interpret the graphical results of that report. Specifically, numerical results for auditory thresholds in the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz should be provided. In addition, he should be asked to state whether speech recognition scores, if any, were obtained using the Maryland CNC Test. If the RO is unable to make contact with K.P.R., or if no response is received from them within a reasonable amount of time, the RO should document such results in the claims file. 2. Contact the Veteran and request that he state whether or not he has received any VA, non-VA, or other medical treatment for his claimed bilateral hearing loss disability that is not currently of record. The Veteran should be provided with the necessary medical authorizations for the release of any non-VA treatment records not currently on file. After obtaining the necessary authorization from the Veteran, the RO should obtain all identified treatment records, to include records from Irwin Army Hospital, Fort Riley, Kansas from 2000 to the present. If such records are unavailable, the RO must document the steps that were taken to obtain these records and notify the Veteran and his representative and provide them an opportunity to provide the records. 3. After the development directed in the first two paragraphs of this remand has been completed, the RO should arrange for a VA examination of the Veteran by an audiologist to determine whether he currently has a bilateral hearing loss disability for VA compensation purposes that is related to, or had its onset during, his period of active military service. The claims files must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner is hereby informed that the Veteran's exposure to acoustic trauma during military service is presumed. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran currently have a bilateral hearing loss disability for VA compensation purposes? (b) If the examiner finds that the Veteran has a bilateral hearing loss disability for VA compensation purposes, he or she should then provide a response to the following question: Is it least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss disability had its onset during, or is etiologically related to his period of active military service, to include his presumed exposure to acoustic trauma, (c) Was the Veteran's bilateral hearing loss disability for VA compensation purposes manifested to a compensable degree within a year of service discharge in July 1979? A complete rationale must be provided for all opinions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Readjudicate the claim for service connection for a bilateral hearing loss disability. If the benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims files are returned to the Board for further appellate consideration. The Veteran 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). _________________________________________________ T. STEPHEN ECKERMAN Acting 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).