Citation Nr: 1322208 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-01 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to May 1972. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2011 the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration - including especially to have him undergo a VA audiological examination for a medical nexus opinion concerning whether his bilateral hearing loss and tinnitus are related to his military service. He had the examination in February 2011 and, after considering the results and the examiner's opinion, the AMC issued a Supplemental Statement of the Case (SSOC) in March 2011 continuing to deny the claims and shortly thereafter returned them to the Board for further appellate consideration. The Board issued a decision in October 2011 also denying the claims, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an August 2012 Order, the Court granted a Joint Motion vacating the Board's decision denying these claims and remanding them for further proceedings consistent with the terms of the Joint Motion. And to comply with the Court's Order, the Board in turn is again remanding these claims to the RO via the AMC. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide these claims so the Veteran is afforded every possible consideration. As noted in the August 2012 Joint Motion for Remand (JMR), the parties agreed that the February 2011 VA compensation examiner failed to provide any reasoning for relying on (agreeing with) Dr. Keith G. Saxon's May 1992 findings that the mixed (i.e., sensorineural and conductive) hearing loss in the Veteran's left ear is a result of middle ear pathology (namely, most likely ossicular chain discontinuity), not instead noise exposure and consequent injury, i.e., acoustic trauma during his military service. The February 2011 VA compensation examiner was also incorrect in her statement that a private audiologist (Jennifer Dann, MS CCC-A) did not review the claims file when commenting in July 2008, when in fact she cited to service treatment records (STRs), in particular, the results of the audiograms the Veteran had when entering and separating from service. See also her more recent October 2012 statement to the same effect and reiterating her prior opinion. The Court (CAVC) has held that when, as here, VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). In this particular instance, then, the Court concluded there had not been compliance with the Board's January 2011 remand directives in having the Veteran undergo that February 2011 VA compensation examination for that medical nexus opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The February 2011 VA compensation examiner therefore needs to be given opportunity to provide supplemental comment addressing these noted deficiencies in her opinion. Consider, as well, that Jennifer Dann, MS CCC-A, points out in her most recent October 2012 statement that the 2005 Institute of Medicine (IOM) Report titled "Noise & Military Service" indicates that, in order to document the characteristic "notch" associated with noise-induced hearing loss during service, the test should include measurements at and above 6000 Hz (whereas the February 2011 VA examination only tested up to 4000 Hz). So this private audiologist, in effect, is contesting the adequacy and viability of the VA examination findings, in turn meaning the February 2011 VA compensation examiner also needs to be given opportunity to justify her clinical findings and the basis of her evaluation. One important point to keep in mind in this regard is that the governing regulation, 38 C.F.R. § 3.385, the requirements of which determine whether a Veteran has a ratable hearing loss disability, irrespective of the downstream question of whether it is related or attributable to his military service, only requires measuring his puretone threshold decibel (dB) losses in frequencies up to 4000 Hz, so no higher. By regulation, then, the February 2011 VA compensation examiner was not required or for that matter expected to test the Veteran's hearing acuity in any higher frequency, so including at and above 6000 Hz. She will, however, have opportunity on remand to respond to this claim that the IOM's report should not be cited if only testing lower frequencies. All of this is in reference to the February 2011 VA compensation examiner's mention that there, in effect, is no such thing according to this IOM report as delayed-onset hearing loss, meaning hearing loss should be apparent right after the claimed noise exposure and consequent injury (acoustic trauma), not instead years later. This was the reason for also disassociating the sensorineural hearing loss (SNHL) in the Veteran's other ear, his right ear, from his military service. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Return the claims file to the VA compensation examiner that evaluated the Veteran in February 2011 and have her provide supplemental comment (an addendum opinion) addressing the deficiencies in her February 2011 opinion. To wit, it is essential that she take into account the following evidence: i) the Veteran's DD Form 214 indicating he was a radio operator-maintainer. This has been identified as an occupation where there was a moderate probability of noise exposure. See Duty Military Occupational Specialty (MOS) Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). ii) Dr. Keith G. Saxon's May 1992 findings that the mixed (i.e., sensorineural and conductive) hearing loss in the Veteran's right ear is a result of middle ear pathology, namely, most likely ossicular chain discontinuity. *In particular, as the CAVC has indicated, the February 2011 VA compensation examiner needs to provide explanatory rationale discussing why she agrees with Dr. Saxon's opinion that this is most likely the source or cause of the hearing loss in the Veteran's left ear, rather than any acoustic trauma he may have sustained while in the military. iii) the February 2011 VA compensation examiner additionally needs to acknowledge and consider the July 2008 and October 2012 statements from Jennifer Dann, MS CCC-A, a private audiologist, who, contrary to what the VA examiner previously surmised, expressly noted in her statements that she had reviewed the STRs, including the results of the audiograms the Veteran had when entering and separating from service, and found that his hearing loss is more likely than not related to his military noise exposure. iv) the February 2011 VA compensation examiner also needs to respond to this private audiologist's claim that the reference to the IOM report is invalidated by the fact that testing of the Veteran's hearing acuity was only done up to 4000 Hz, rather than to 6000 Hz and higher, which the IOM report supposedly suggest is necessary, but when also recognizing that 38 C.F.R. § 3.385 only requires that VA compensation examiners test up to 4000 Hz. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then have someone else do it that it qualified to make these necessary determinations. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. In any event it is absolutely imperative that the examiner, whoever designated, provide the necessary discussion of the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting conclusions. If this requested supplemental opinion cannot be expressed without resorting to mere speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason, whatever that may be. So merely saying she cannot respond will not suffice. 2. Ensure the opinion is responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be and, as importantly, considers the evidence mentioned and addresses the deficiencies in the prior opinion provided in February 2011. Take all needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 3. Then readjudicate the Veteran's claims in light of this and all other additional evidence. If the claims are not granted to his satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it by submitting additional evidence and/or argument before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).