Citation Nr: 1317910 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-20 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from July 1971 to July 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012, a travel board hearing was held before the undersigned in Montgomery, Alabama. A transcript of the hearing is associated with the Veteran's claims file. 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 initially notes that although an audiogram at the time of the Veteran's entrance into active service reflects that the Veteran's left ear had a hearing threshold of 45 decibels at 4000 Hertz, the entrance examiner did not rely on this finding to diagnose hearing loss at that time and the Veteran otherwise denied a history of bilateral hearing loss. Therefore, the Board preliminarily finds that left ear hearing loss was not "noted" at the time of entry into active service, and that the Veteran's hearing should be presumed as sound at the time he entered service. Consequently, this case should only be treated as a claim for service connection for bilateral hearing loss on a direct basis. In this regard, however, while the May 2009 VA examiner rendered a negative nexus opinion regarding a relationship between the Veteran's bilateral hearing loss and service, the Veteran's assertions regarding continuity of symptomatology since service were not addressed. The United States Court of Appeals for Veterans Claims (Court) has held that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2012). Taking into account the Veteran's testimony before the undersigned, and the VA treatment reports of record which note that the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, which has been found to be related to service, the Veteran's claim for service connection for bilateral hearing loss should be remanded for an additional VA examination so as to determine whether any currently-diagnosed hearing loss is etiologically-related to his period of active service. With regard to the VA audiological examination, the Board notes that the requested VA opinion must be consistent with the ruling in Hensley. As such, the examiner must not rely solely on the fact that the Veteran's hearing was within "normal" limits for VA purposes at the time of separation from service when forming an opinion. If the aforementioned is the basis, or crux, of the examiner's rationale, the opinion would be inadequate on which to base a decision. Accordingly, these issues are REMANDED for the following actions: 1. The RO/AMC shall schedule a VA audiological examination so as to assess the nature and etiology of the Veteran's currently-diagnosed bilateral hearing loss. The examiner should be requested to render an opinion as to whether the Veteran's bilateral hearing loss is at least as likely as not etiologically-related to his military service. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. Following a review of the claims folder, the examiner should address whether it is at least as likely as not that the Veteran's bilateral hearing loss originated during active service, or is otherwise related to active service. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should also note in his or her opinion that a review of the claims file was conducted, and must discuss pertinent evidence within the claims file. Consideration must be given to the Veteran's assertion of continuity of symptomatology. If it is the opinion of the examiner that the Veteran's current bilateral hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Thereafter, the RO/AMC should readjudicate the issue of service connection for bilateral hearing loss. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, and the Veteran should thereafter be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ Michael Skaltsounis 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).