Citation Nr: 1322291	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  07-02 264	)	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:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1979 to September 1991.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama.

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 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 Veteran has contended that his currently diagnosed bilateral hearing loss is related to his period of active service, and in particular, to in-service noise exposure from his duties in the motor pool.  During his June 2012 hearing before the Board, the Veteran testified that while serving in Vietnam, his primary duties included hauling ammunition, driving trucks, and running convoys.  The Veteran is competent to report an injury which occurred in service and symptomatology that he can observe.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-337 (Fed. Cir. 2006).  Indeed, his DD-214 shows that his inservice specialty was motor transport operator and drill sergeant.  Further, a July 1971 inservice audiogram reflects some degree of hearing loss, in the right ear, as the thresholds in the 500, 1000, 2000, and 3000, 4000 Hertz frequencies were all noted to be 25 decibels.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss).  The same audiogram noted that the Veteran was routinely exposed to hazardous noise and he was placed on hearing loss profile at that time.  Thus, the claimed exposure to excessive noise in service is consistent with the evidence of record.  Nevertheless, the VA medical opinions of record have failed to address the Veteran's contentions or fully explain the significance of the July 1971 in-service audiogram reflecting some degree of hearing loss.  

In May 2013, the Board remanded the case to obtain a new VA examination and medical opinion to determine the etiology of the Veteran's bilateral hearing loss.  Pursuant to the Board's May 2013 remand, the Veteran was provided a VA audiological examination in May 2013.  However, the VA examiner indicated that the pure tone thresholds obtained for both ears were deemed unreliable.  The examiner further indicated that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, and so on, that make combined use of puretone average and speech discrimination scores inappropriate.  The examiner therefore stated that an opinion regarding hearing loss could not be provided due to the unknown status of the Veteran's hearing.

Notwithstanding this, the medical evidence of record reflects that the Veteran currently has bilateral hearing loss.  Most recently, the September 2012 VA audiological examination revealed a diagnosis of bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
40
40
40
LEFT
35
35
40
40
40

It was noted that these test results were valid for rating purposes.  Speech discrimination scores were 72%, bilaterally, and again it was noted that the use of speech discrimination score was appropriate for the Veteran.  As such, the Board finds that current hearing loss disability has been established in this case.

As the Veteran's bilateral hearing loss disability was present during the appeal period, service connection could still be warranted despite the May 2013 VA examination report's finding.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim).  As the May 2013 VA examiner did not provide a nexus opinion with respect to the Veteran's current bilateral hearing loss, a remand is required for an opinion.  See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); also see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination).

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.  Forward the Veteran's claims file to the May 2013 VA examiner, or to a different VA audiologist if the May 2013 VA examiner is not available.  The VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to service, to include his routine exposure to hazardous noise while serving in the motor pool.  In rendering an opinion, the examiner must note that applicable law provides that service connection may be granted for a disability initially demonstrated after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.

The VA clinician is requested to provide a thorough rationale for any opinion provided.  The clinician should review the claims folder and this fact should be noted in the accompanying medical report.  

In rendering the requested opinion and rationale, the examiner must note that the fact that the Veteran's in-service examinations were within normal limits is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service.

The examiner must also indicate whether the Veteran's currently diagnosed bilateral hearing represents subsequent manifestations of hearing loss shown by the July 1971 inservice audiogram, or otherwise related to such findings.

It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).

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.

If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided.

2.  Thereafter, readjudicate the issue on appeal of entitlement to service connection for bilateral hearing loss.  If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.

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).

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).



_________________________________________________
L. M. BARNARD
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).