Citation Nr: 1326436 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-12 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1962 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and issued by the RO in Chicago, Illinois. In a substantive appeal dated in April 2011, the Veteran requested a video-conference hearing before a Veterans Law Judge. As such, he was notified in an April 2013 letter that his requested hearing was scheduled for May 2013. However, in early May 2013 and prior to his scheduled hearing, he withdrew his hearing request. 38 C.F.R. § 20.704 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the claim on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he suffers from hearing loss as a result of his in-service noise exposure. The Board notes that the Veteran's military occupational specialty (MOS) of Field Artillery Crewman is among those listed in the Department of Defense's Duty MOS Noise Exposure Listing. The Veteran was provided with a VA examination in May 2009 to determine the etiology of his claimed bilateral hearing loss. The examiner opined that the Veteran's hearing loss was less likely as not related to his service as his hearing thresholds were documented to be normal at service separation. However, the Board finds that such opinion is inadequate. In this regard, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined that an examination was inadequate where the examiner did not comment on the Veteran's reports of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Here, the May 2009 VA examiner did not discuss the Veteran's lay assertions of exposure to acoustic trauma in service. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Additionally, it is unclear whether the examiner considered the fact that the Veteran's November 1963 separation examination was conducted using American Standards Association (ASA) units as opposed to International Standard Organization (ISO) units. In this regard, service department audiometric readings prior to October 31, 1967, must be converted from ASA units to ISO units. In the instant case, the Veteran's puretone threshold readings as listed in ASA units on his November 1963 separation examination report are as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 - 10 15 LEFT 0 0 0 - 10 15 After converting the readings to ISO units, the Veteran's puretone threshold readings on his November 1963 separation examination report are as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 10 10 - 15 25 LEFT 15 10 10 - 15 25 Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, as the May 2009 VA examiner relied solely on the fact that the Veteran's discharge examination revealed that hearing was within normal limits to support his negative opinion and did not appear to take into account that such report had not been converted from ASA units to ISO units, the Board finds such examination to be inadequate. Therefore, a remand is necessary in order to obtain an addendum opinion so as to determine the nature and etiology of the Veteran's current bilateral hearing loss. The Board also notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to his bilateral hearing loss. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed bilateral hearing loss and to submit any treatment records or statements addressing the etiology of such disorder. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed bilateral hearing loss since service and to submit any additional statements addressing the etiology of such disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the claims file, to include a copy of this remand, to the May 2009 VA examiner for an addendum opinion. If the examiner who drafted the May 2009 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss is related to his in-service acoustic trauma. In this regard, the examiner must consider the fact that the Veteran's MOS is among those listed in the Department of Defense Duty MOS Noise Exposure Listing. The examiner should also consider the audiometric findings as noted on the Veteran's November 1963 separation examination as converted from ASA units to ISO units (see above). In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the onset and continuity of symptomology since service. The examiner should also discuss the rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence of the record. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the April 2011 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).