Citation Nr: 1322608 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 11-07 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from April 1968 to December 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. He perfect appeals of both claims, but another RO decision since issued in June 2012, during the pendency of his appeal, granted his claim for service connection for tinnitus and assigned the highest possible schedular rating of 10 percent retroactively effective from April 8, 2010, so back to the date of receipt of this claim. There is no higher schedular rating for tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005), aff'd Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There equally is no possibility of receiving any earlier effective date. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. And, in any event, he has to separately appeal these "downstream" issues, which he apparently has not. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). So the only remaining claim at issue concerns whether he also is entitled to service connection for his hearing loss. Since, however, this remaining claim requires further development before being decided on appeal, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND And although the Board sincerely regrets the additional delay that inevitably will result as a consequence of this remand of this remaining claim, the additional development of this claim is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive grace period after service allowing for sensorineural hearing loss, as an organic disease of the nervous system, to initially manifest to a compensable degree (meaning to at least 10-percent disabling), although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley, 5 Vet. App. at 159. The results of the Veteran's June 2012 VA audiological examination confirm he has sufficient hearing loss to be considered a ratable disability according to the requirements of 38 C.F.R. § 3.385. That VA examiner diagnosed bilateral sensorineural hearing loss. But the audiology examiner's medical opinion is based on an inadequate rationale as the examiner based her negative medical nexus opinion solely on the fact that the Veteran's hearing was normal on audiometric testing during his separation examination, which is contrary to the Court's holding in Hensley and Ledford, supra. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). That noise exposure causes hearing loss is incontrovertible. And although there is no apparent literature strongly supporting the notion that noise-induced hearing loss manifest many years later, long after the exposure (see 2005 Institute of Medicine (IOM) Report titled "Noise & Military Service"), and numerous animal studies support this conclusion, unfortunately no long-term study has been completed on humans. The Court also has explained that it is not mere review of the claims file that is determinative of the probative value of an opinion, rather, more so the discussion of the underlying medical rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Supplemental comment therefore is needed concerning the etiology of the Veteran's bilateral hearing loss. He has reported being exposed to loud noise during his service from his job as a military policeman, and the RO conceded exposure to acoustic trauma, including when granting his ancillary claim for tinnitus. But as contrary reason for denying his claim for hearing loss, the RO based its decision on the examiner's unfavorable opinion. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. If still available, have the June 2012 VA compensation examiner provide a supplemental medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's current hearing loss disability is related or attributable to his military service - and, in particular, to noise exposure in his military occupational specialty (MOS) as a military policeman (MP). If, for whatever reason, it is not possible or feasible to have this same examiner provide this additional comment (addendum opinion), then have someone else provide it that has the necessary qualifications. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or the additional comment, instead, can be provided merely by reviewing the relevant evidence in the file. The commenting examiner, whoever designated, must review the claims file, including a complete copy of this remand, for the pertinent history. The examination report must include discussion of the rationale for all opinions expressed and conclusions reached, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file. *In particular, if the examiner agrees in effect that there is no such thing as delayed-onset hearing loss, so that hearing loss should have been objectively evident much earlier than when it was actually shown in this instance, certainly more contemporaneous to the alleged trauma in service, such as during the Veteran's separation examination, then there needs to be more explanation of why there is this expectation and why it is reasonable under the circumstances. Merely conclusively saying there is this expectation, without any explanation, including without any discussion of the 2005 IOM report, is insufficient. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ 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).