Citation Nr: 1324725 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 03-05 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral hearing loss to include as secondary to service-connected sinusitis and/or allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2009, the Board issued a decision denying the claim of service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("Court"). In April 2010, the parties to the appeal filed a Joint Motion for Remand ("joint motion"). That same month, the Court granted the motion and remanded the matter to the Board for action in accordance with the joint motion. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Reason for Remand: To obtain an adequate medical opinion in compliance with joint motion directives. As noted by the parties in the joint motion, while the Veteran was afforded VA audiological examinations in February and June 2007, the examiners failed to consider an in-service May 1984 examination. Both VA examiners inaccurately reported that the Veteran's service treatment records were negative for a hearing test at separation. The Board acknowledges that the May 1984 examination was not found in any of the service treatment records envelopes, but instead was supplied by the Veteran. Nevertheless, VA examiners purport to review the claims files during the course of evaluation of the matter; therefore, the VA examiners should have seen and discussed the report. As noted by the Board in its 2011 remand, there is no reason to doubt the report's authenticity, and as such, it must be considered by a VA examiner prior to further consideration of the claim on appeal by the Board. As was noted in the joint motion, the in-service examination report includes audiologic test results and notes "Sinusitis/allergic rhinitis with associated headaches 2° to Eustachian dysfunction, controlled with meds; currently experiencing symptoms, under treatment, NCNS." The joint motion specifically instructed the examiner to "address all pertinent service medical records including the May 1984 separation examination." Thus, the Board, in July 2011, remanded this issue for this purpose. In particular, the Board instructed the RO/AMC to obtain supplemental opinions from the prior VA examiners, or, if those examiners were unavailable, schedule the Veteran for a new VA audiologic examination. The Veteran was afforded a new VA examination in August 2011. The VA examiner confirmed the existence of sensorineural hearing loss bilaterally via audiometry findings, and also noted that testing revealed abnormal tympanometry findings in both ears. The examiner reported the May 1984 examination, but only to the extent that it "indicated hearing within normal limits, bilaterally." There was no mention of the noted "Sinusitis/allergic rhinitis with associated headaches 2° to Eustachian dysfunction, controlled with meds; currently experiencing symptoms, under treatment, NCNS," which was a consideration required by the joint motion and by the Board's 2011 remand. The examiner went on to opine that the Veteran's current sensorineural hearing loss is less likely than not related to military noise exposure. Finally, the VA examiner, an audiologist, noted "an audiologist cannot render an opinion regarding whether the Veteran's hearing loss is due to or aggravated by sinusitis or allergic rhinitis. Ear disease examination may be required for ENT opinion." The Board finds deficiency in the August 2011 opinion for several reasons. In particular, the examiner did not discuss the significance of abnormal tympanometry findings. Moreover, the examiner did not discuss the complete May 1984 examination findings, as was required by the joint motion and prior Board remand. Again, an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Following the August 2011 opinion, the AMC attempted to schedule the Veteran for a VA ENT examination in January 2012 and March 2012; however, the Veteran was unable to attend. The AMC deemed examination unnecessary and sought an opinion without examination. However, it is not clear that the physician to whom the AMC referred the case was an ENT specialist. The November 2012 medical opinion report was provided on AMC letterhead from what appears to be a Medical Officer at AMC. The Board finds that the AMC opinion provided was inadequate. Initially, the Board notes that the AMC physician did not discuss the in-service notation of "Sinusitis/allergic rhinitis with associated headaches 2° to Eustachian dysfunction, controlled with meds; currently experiencing symptoms, under treatment, NCNS," required by the joint motion and by the Board's 2011 remand. The report merely duplicated the prior reports and concluded, "It is my medical opinion that the Veteran's claimed condition of hearing loss, diagnosed as bilateral sensorineural hearing loss is less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated by the Veteran's service connected conditions of sinusitis or allergic rhinitis." The only rationale provided was that this physician concurred with the opinions of the prior examiners and that there was a "negative MD Consult search for sinusitis and allergic rhinitis as risk factor or cause of sensorineural hearing loss." A rationale based upon concurrence with prior opinions which have been deemed inadequate by both the Board and the parties of the joint motion is not adequate. Reliance on a "negative MD Consult search" as a basis for the opinion is also not indicative of an opinion based upon the Veteran's history and record, and is not indicative of an opinion based upon the knowledge of an ENT specialist. The VA audiologist clearly indicated that an opinion on the likelihood of the Veteran's hearing loss being caused or aggravated by the service-connected sinusitis would require an opinion by an ENT. The AMC did not seek an opinion by a VA ENT examiner but rather referred the case to the AMC Medical Officer, and it is not clear from the report that that doctor is an ENT specialist. In summary, the Board finds that the August 2011 VA examination report is inadequate because the examiner did not address the complete notations of the May 1984 separation examination report or address the significance, if any, of abnormal tympanometry findings on examination. The AMC then obtained a medical opinion from an AMC physician who is not shown to be a qualified medical examiner in matters related to the ear, nose and throat, and who provided an inadequate report. Consequently, the Board finds that the August 2011 VA examination report, and the November 2012 AMC independent medical opinion, are both inadequate. See 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). By not ensuring that the Veteran was afforded an adequate examination and opinion, the AMC did not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). AMC compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Id. As such, a remand for corrective action is required. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the claims file to the examiner who conducted the August 2011 VA audiological examination for a supplemental opinion. The claims folder should be made available to and reviewed by the examiner, and such review should be reflected on the examination report. The examiner/audiologist should provide a supplemental opinion that includes discussion of (1) the Veteran's May 1984 in-service examination report, to include the notation of "Sinusitis/allergic rhinitis with associated headaches 2° to Eustachian dysfunction, controlled with meds; currently experiencing symptoms, under treatment, NCNS," and (2) the abnormal tympanometry findings in the August 2011 VA examination. Based upon these findings, the examiner/audiologist should provide an opinion as to the following: * Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's current hearing loss disability is due to or the result of the Veteran's active military service? * Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's hearing loss disability is either (a) due to or (b) aggravated by either the service-connected sinusitis or allergic rhinitis? (Should the examiner continue to deem an ENT specialist necessary to answer this question, then such recommendation should be indicated in the supplemental opinion report.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. The rationale for all opinions expressed should be provided in a legible report. 2. The RO/AMC should obtain an opinion from a VA ENT specialist. The claims folder should be made available to and reviewed by the examiner, and such review should be reflected on the examination report. The VA ENT examiner should provide a supplemental opinion based upon a complete review of the Veteran's claims files, which includes, but is not limited to, a discussion of (1) the Veteran's May 1984 in-service examination report, to include the notation of "Sinusitis/allergic rhinitis with associated headaches 2° to Eustachian dysfunction, controlled with meds; currently experiencing symptoms, under treatment, NCNS," and (2) the abnormal tympanometry findings in the August 2011 VA examination. The VA ENT examiner should provide an opinion as to the following: * Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's current hearing loss disability is due to or the result of the Veteran's active military service? * Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's hearing loss disability is either (a) due to or (b) aggravated by either the service-connected sinusitis or allergic rhinitis? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. The rationale for all opinions expressed should be provided in a legible report. 3. Thereafter, the RO/AMC should readjudicate the claim of entitlement to service connection for bilateral hearing loss. If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).