Citation Nr: 1321391 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-50 756 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the RO. In November 2009, the RO denied service connection for tinnitus. The Veteran did not perfect an appeal as to this matter, and it is not for consideration at this time. The Virtual VA eFolder has been reviewed. 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 appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In February 2009, the Veteran submitted a claim of service connection for bilateral hearing loss. He reported that his disability began in 1957. In an associated statement, he reported being exposed to loud noises from tanks and rifle fire. He also worked in the motor pool where he was further exposed to loud noises. In his VA Form 9, the Veteran reported being a member of the boxing team and having no head protection. He again stated that he was around small arms fire. In a May 2013 brief, the representative noted the Veteran's belief that in-service duties and boxing caused his hearing loss. The Veteran's DD Form 214 shows that his military occupational specialty was light vehicle driver. The Board in this regard concedes his in-service exposure to acoustic trauma as described by the Veteran. The Veteran is competent to report in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report observations that come to him through his senses). The Veteran underwent a private audiometric evaluation in January 2005. The case history was noted to be positive for significant noise exposure. The diagnosis was that of bilateral sensorineural hearing loss. The examiner did not provide an opinion as to etiology. Evidence of record shows a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2012). As the record contains evidence of current bilateral hearing loss, the question then is whether this disability is related to active military service or events therein. Information from the service department indicates that the Veteran's service treatment records are fire-related. Thus, the Board is unable to review the records to determine if there were any hearing complaints during service or whether there was evidence of hearing loss at separation from service. The Board is mindful that in cases where service records are unavailable, there is a heightened duty to assist the veteran in developing the evidence to support his claim. See Cuevas v. Principi, 3 Vet. App. 542 (1992). The Veteran underwent a VA audiometric examination in April 2009. At that time, he reported being in transportation during service and participating on the boxing team. He did not report any particular in-service noise exposure. He did identify some post-service occupational and recreational exposure. The examiner opined that it was less likely as not that the Veteran's hearing loss was caused by or a result of his military service. The examiner stated that this opinion was based on no evidence of hearing loss found in the military records. She further noted that the Veteran did not report any particular military noise exposure other than what would be typical of that in basic training and a limited amount of occupational exposure. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On review, it appears that the examiner based her opinion, in large part, on a finding that there was no evidence of hearing loss in service. Further, the examiner did not appear to consider the Veteran's reported noise exposure to tanks, small arms fire, and motor vehicles. As discussed above, the Board concedes in-service acoustic trauma. The absence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the foregoing, the Board finds that additional medical opinion, which considers in-service noise exposure and the Veteran's lay statements, is necessary for the purpose of determining the nature and etiology of currently diagnosed hearing loss. 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. The RO should take all indicated action to refer the Veteran's file to a VA examiner for additional opinion as to the nature and likely etiology of the claimed hearing loss. If possible, the file should be referred to an examiner other than the one who conducted the April 2009 examination. An additional audiology examination is not needed, unless considered necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the post-service medical records and lay statements. The examiner should note that that the absence of evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Board finds the Veteran's reports of in-service noise exposure and his assertions of having a hearing loss began in service and continues to date. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to whether it is at least as likely as not that any current hearing loss disability is due to his exposure to excessive noise levels during service or another event or incident of that period of active service, to include his reported participation on the boxing team. A complete rationale for any opinion expressed must be provided. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, the RO should implement corrective procedures. 3. After completing the requested action and any additional development deemed appropriate, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). 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). _________________________________________________ STEPHEN L. WILKINS 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).