Citation Nr: 1325266 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-03 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right hip disorder, claimed as an under-developed ball socket. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active military service from August 1978 to August 1982. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with his appeal, the Veteran presented testimony before the undersigned at a Board hearing at the RO in May 2013. A transcript of the hearing has been associated with the claims file. 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 Although the Board regrets any further delay, a remand for additional development is necessary. I. Bilateral Hearing Loss The Board has reviewed the December 2008 VA examination and opinion obtained with regard to the Veteran's claim for service connection for hearing loss. The examiner stated that the Veteran's hearing loss is not related to military noise exposure because normal hearing sensitivity of both ears was shown at the time of his discharge from the military. Unfortunately, this rationale suggests that a causal connection could never be warranted whenever there is normal hearing at separation. Although a VA examiner is not prohibited from finding audiometric results at separation to be etiologically relevant, normal in-service hearing test results do not preclude a veteran from establishing entitlement to service connection. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In this case, there is other evidence of record that must be addressed by the examiner so that a fully informed decision can be rendered regarding the etiology of the Veteran's hearing loss. Significantly, the Board notes that the Veteran's service separation audiogram results show a decrease in auditory acuity from his entrance audiogram at the 500 Hertz level, bilaterally; at the 1,000 Hertz level for the right ear; and at the 2,000 Hertz level, bilaterally. Moreover, the Veteran submitted a September 2008 private treatment report wherein S.J.C., M.D. noted a many years (30) history of hearing loss and stated that a significant factor for hearing loss is "recent or remote loud noise exposure." In this case, the Veteran reported being exposed to loud noises on the shipyards during his time in the Navy. Because the private medical examiner indicated that remote noise exposure may be considered a risk factor for hearing loss, the VA examiner should consider this information in light of the separation audiogram findings in rendering an opinion. In Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veteran's claims expressed that it is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. To that end, 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). Because the existing VA medical opinion is inadequate, the Board is requesting that the claims file again be sent for review and another opinion be obtained regarding the nature and etiology of the Veteran's current bilateral hearing loss. II. Right Hip Disorder With respect to the Veteran's claim for entitlement to service connection for a right hip disorder, the Board finds that a VA examination and opinion is warranted because there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, there is no question that the Veteran has a current right hip disorder for which he underwent a total hip arthroplasty in May 2009. Additionally, he sought treatment for his right hip in September 1981, and Legg Perthes disease was noted on the Veteran's separation Report of Medical History in July 1982. Although the service treatment records suggest that the right hip problems had their onset prior to service (see also post-service records, including the July 2008 statement from the Veteran's sister that "the doctor said his right hip didn't develop correctly at birth"), the Veteran asserts that his duties in service aggravated the disorder, which the Board finds sufficient to indicate that his current right hip disorder may be related to service under the low threshold set forth by McLendon. Furthermore, the Board finds it important to have a medical professional address the question of whether the Veteran has a congenital defect or disease of the spine. Although Legg Perthes disease is noted on the Veteran's separation Report of Medical History in July 1982, the July 2008 statement from the Veteran's sister stated that "the doctor said his right hip didn't develop correctly at birth," and VA, in seeking X-rays, noted there was a questionable congenital deformity of the right hip. Furthermore, current diagnoses include hip dysplasia and degenerative arthritis. As such, without further clarification, the Board is without medical expertise to ascertain whether the Veteran currently has a congenital defect or disease of the right hip. See Godfrey v. Brown, 7 Vet. App. 398 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The U.S. Court of Appeals for Veterans Claims (Court) has noted that a VA General Counsel opinion on the subject distinguishes the two classes of disabilities on the basis that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). Further, each has separate legal requirements for service connection. For congenital defects, service connection may be warranted only for superimposed injuries or diseases related to service; for congenital diseases on the other hand, in cases such as this (where the Veteran did not have a disability noted upon entrance into service), the presumption of soundness is for application and service connection may be warranted for preexisting disorders that were aggravated by service. Therefore, it is important that the VA examiner clearly denote whether the evidence shows that the Veteran has a congenital "defect" or a "disease," and appropriately answer the corresponding opinion questions set forth below. Finally, to the extent that the Veteran testified that he received post-service treatment from a "prior caregiver" for his hip around mid- to late-July 2008, the Board notes that VA treatment records beginning January 2009 have been associated with the claims file. If, however, the Veteran was referring to a non-VA treatment provider whose records have not yet been obtained, he will be provided with another opportunity on remand to identify this provider so that VA may attempt to obtain these records. Accordingly, the case is REMANDED for the following actions: 1. Send a letter to the Veteran asking him to identify any non-VA treatment providers that may have treated him for his hip around 2008. If the Veteran identifies a private treatment provider whose records are outstanding and provides the necessary authorization and consent, obtain and associate such records with the claims file. Two attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 2. The RO/AMC should obtain an addendum opinion regarding the nature and etiology of the Veteran's bilateral hearing loss. The claims folder must be provided to and reviewed by the examiner in conjunction with the opinion. All pertinent symptomatology and findings must be reported in detail. If an examination is deemed necessary in rendering the addendum opinion, another audiological evaluation should be conducted. The examiner must render an opinion as to whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that any degree of the Veteran's current hearing loss disability is related to the Veteran's noise exposure in service. In rendering such an opinion: (a) The examiner must discuss the decrease in hearing acuity noted in the audiogram results of the July 1982 separation examination, which show a decrease in auditory acuity at the 500 Hertz level, bilaterally; at the 1,000 Hertz level for the right ear; and at the 2,000 Hertz level, bilaterally. The examiner is informed that, pursuant to Hensley v. Brown, 5 Vet. App. 155, 160 (1993), "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." (b) The examiner must also discuss the September 2009 statement of S.J.C., M.D., which noted a many years (30) history of hearing loss and stated that a significant factor for hearing loss is "recent or remote loud noise exposure." (Emphasis added). All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC should obtain a VA examination and opinion regarding the nature and etiology of the Veteran's right hip disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the opinion. All pertinent symptomatology and findings must be reported in detail. The examiner is requested to provide an opinion as to the following questions: (a) Does the Veteran's have a congenital defect or disease of the right hip? [For VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)).] In answering this question, the examiner is directed to consider the in-service notation of Legg Perthes disease on the Veteran's separation Report of Medical History in July 1982. (b) If the Veteran has a congenital defect, was this defect subject to a superimposed disease or injury during service? If the answer is "Yes," please describe the resultant disability. (c) For right hip disorders other than congential defects (including congenital diseases or any other non-congenital right hip disorders), did this disability, which was not noted upon entrance into service, "clearly and unmistakably" (obviously or manifestly) exist prior to the Veteran's entry into active duty service in August 1978? If the disorder clearly and unmistakably existed prior to service, was it "clearly and unmistakably" (obviously or manifestly) not aggravated by military service? In this special context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. If the disorder did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably not aggravated by military service, then assume for the purposes of answering the following question that the claimed condition did not exist prior to service. Is it "at least as likely as not" (50 percent or greater probability) that the congenital disease and/or any other non-congenital right hip disorder was incurred in or caused by an in-service injury, event, or disease? All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for bilateral hearing loss and a right hip disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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). _________________________________________________ TANYA A. SMITH 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).