Citation Nr: 1317792 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 12-28 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right ear hearing loss disability caused by February 2008 VA ear treatment. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note 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 Veteran served on active duty from August 1955 to February 1959. This case comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO granted entitlement to service connection for tinnitus and denied entitlement to service connection for bilateral hearing loss disability. The Board has recharacterized and bifurcated the hearing loss claim for the reasons stated below. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012) (VA is free to dismember a claim and adjudicate it in separate pieces); Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). In his substantive appeal, the Veteran requested a Travel Board hearing, and one was scheduled for November 2012. The Veteran requested a postponement and one was granted. The Veteran withdrew his hearing request in April 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Once VA undertakes the effort to provide an examination when developing 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). In this case, the Veteran was afforded an October 2011 VA audiological examination as to the etiology of his tinnitus and hearing loss disability. With regard to tinnitus, the VA examiner noted that the Veteran reported experiencing tinnitus after the firing of 40 inch guns on the ship he was on. The examiner concluded that it was at least as likely as not that the Veteran's tinnitus was related to his noise exposure. The RO granted entitlement to service connection for tinnitus based on this opinion. With regard to hearing loss, however, the examiner noted that the Veteran's military occupation specialty (MOS) was cook, and that he therefore had a low probability of noise exposure. Based in part of this low probability of noise exposure, the VA examiner concluded that current hearing loss disability was not likely related to service. A medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the VA examiner's premise of low probability of noise exposure conflicts with her conclusion that the Veteran's tinnitus was related to in-service noise exposure, a conclusion on which the RO relied in granting entitlement to service connection for tinnitus. As both the examiner and the RO found that the Veteran was exposed to loud noise in service from guns while aboard ship, notwithstanding his MOS as a cook, the examiner's premise of no noise exposure in concluding there was a lack of nexus between hearing loss and service must be deemed inaccurate and her opinion on this question was therefore not probative. A remand for a new VA opinion on this question is therefore warranted. As to the section 1151 claim, the Board notes that the Veteran did not claim his right ear hearing loss was caused by VA treatment until his January 2012 notice of disagreement. The RO first addressed this theory of entitlement in its July 2012 supplemental statement of the case (SSOC), as part of the continuation of the denial of entitlement to service connection for bilateral hearing loss disability following provision of notice to the Veteran regarding this theory in June 2012. The Board has therefore bifurcated the claim into claims for entitlement to service connection and entitlement to compensation pursuant to 38 U.S.C.A. § 1151, and will not at this time consider whether a separate rating decision should have been issued on the section 1151 claim. The Veteran claims that on February 12, 2008, he went to a VA Medical Center because he had partial hearing loss, was told he had wax buildup in his right ear, and that the VA employee who cleaned out his ears did so extremely roughly and punched the cleaning swab into his right ear very hard. When he woke up the next morning he could not hear out of his right ear and believes that his right ear hearing loss was caused by the VA treatment. VA treatment notes dated February 12, 2008 reflect that that the Veteran had acute vertigo due to ear lavage (which he had performed on himself earlier that day), defective hearing, and right ear impacted cerumen. Ear lavage and audiology examination were recommended as soon as possible. Private treatment records contain notations of sudden right ear hearing loss, although noting that right ear hearing loss was longstanding, and reflect that the Veteran subsequently underwent cochlear implant. The Court recently instructed that, with regard to when a VA examination is required, the statute applicable to compensation claims, 38 U.S.C.A. § 5103A(d) is also applicable to section 1151 claims, and the Board must interpret this language broadly to ask whether the evidence indicates that a current disability or its symptoms may be associated with the VA medical care furnished to the Veteran. Trafter v. Shinseki, __ Vet. App. __, No. 10-3605, 2013 WL 1789774, at *11 (Apr. 29, 2013) (citing, inter alia, McLendon v. Nicholson, 20 Vet. App. 79 (2006)). In this case, there is evidence of current right ear hearing loss disability and VA treatment of the right ear at around the time the disability worsened according to the Veteran's competent testimony and private treatment records. The Board finds that this evidence meets the low threshold of Trafter and McLendon and that an opinion should also be obtained on this question. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After all available records and/or responses from each contacted entity are associated with the claims file, request an opinion from a VA physician as to the etiology of the Veteran's current bilateral hearing loss disability, to include whether right ear hearing loss disability was caused by VA right ear treatment in February 2008. The claims file must be made available to the physician designated to offer the opinion. As to the Veteran's bilateral hearing loss disability, the physician should assume in-service exposure to noise from loud guns aboard a Navy ship and indicate whether it is as least as likely as not (i.e., there is a 50 percent or greater probability) that current hearing loss disability is related to this in-service noise exposure. As to the right ear hearing loss disability, the physician should indicate whether it is as least as likely as not (i.e., there is a 50 percent or greater probability) that the right ear hearing loss disability was caused by VA treatment of the right ear in February 2008. If the answer to this question is in the affirmative, the physician should also opine as to whether the proximate cause of such additional disability was (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, (b) an event not reasonably foreseeable, or (c) neither a nor b. A complete rationale should be provided for each opinion given. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinions 4. Readjudicate the claims for entitlement to service connection for bilateral hearing loss disability and for entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right ear hearing loss disability. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond before the case is returned to the Board. 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 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). _________________________________________________ CHERYL L. MASON 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).