Citation Nr: 1326490 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 12- 29 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 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 claims that his currently diagnosed bilateral hearing loss is related to his military service. He asserts that his disorder is the result of in-service noise exposure from weapons training and artillery fire during his service as a light weapons infantry man. The Veteran has claimed that his bilateral hearing loss began during his active duty service. In March 2010, the RO afforded the Veteran a VA examination and obtained a medical opinion as to the etiology of the Veteran's hearing loss. The audiometric examination revealed bilateral hearing loss as defined by VA regulations, and the examiner provided an opinion essentially that the Veteran's hearing loss was not due to his military service. See 38 C.F.R. § 3.385 (2012). However, the Board finds that the March 2010 VA opinion is inadequate with which to decide the claim. Specifically, in a March 2010 addendum report, the VA examiner noted that the Veteran's enlistment audiological examination revealed hearing within normal limits bilaterally. In this regard, the Veteran's January 1966 pre-induction medical examination report includes the findings of the audiometric examination and reflects a diagnosis of conductive hearing loss. Here, the Board notes that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI in order to adequately assess the Veteran's January 1966 hearing thresholds. In this case, the VA examiner failed to discuss whether or not the required conversion to ISO-ANSI units from the ASA units for the January 1966 audiometric test results was performed or discuss the conductive hearing loss diagnosis. Thus, it is unclear whether the examiner gave adequate consideration to the results of the in-service hearing assessment or the evidence of a preexisting hearing loss disorder. Moreover, the Board notes that the Veteran's June 1968 separation audiometric examination fails to show hearing loss as defined by VA regulations and instead reflects improvement in the Veteran's hearing acuity at all hearing levels tested. See 38 C.F.R. § 3.385. However, the March 2010 examiner did not discuss the change in the hearing threshold levels from the time of the Veteran's enlistment to the time of separation, or provide any explanation for his "improved" hearing acuity. Additionally, the examiner's opinion against the claim seems to be primarily based on her assessment that the Veteran's enlistment and separation audiological examinations showed hearing within normal limits. This opinion, however, does not give consideration to the Veteran's competent lay statement regarding the in-service onset of his hearing loss and improperly relies on the absence of hearing loss documented in the Veteran's service treatment records. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.303 (2012); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (holding that the absence of in-service evidence of a hearing disability during service, i.e. one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim). The Board also reiterates that the Veteran's January 1966 enlistment audiometric examination results are suggestive of preexisting hearing loss. Because of the deficiencies with the March 2010 VA opinion, there is no adequate medical opinion of record that addresses whether there is any relationship between the Veteran's active military service and his current bilateral hearing loss. Thus, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing 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). Accordingly, the RO or the AMC must obtain an adequate medical opinion from a qualified clinician prior to any further adjudication of the Veteran's claim. Additional efforts should also be undertaken in an attempt to obtain any of the Veteran's outstanding VA treatment records. The Veteran asserts that he underwent a hearing evaluation in August 1968 at the VA Medical Center (VAMC) in San Diego, California soon after his discharge from active duty. To date, efforts to obtain these records have been unsuccessful. However, evidence of record indicates that the Veteran's VA records were once located at a VA facility in Los, Angeles, California but were transferred to another VA facility located in San Diego, California. The Veteran submitted a letter he reportedly received in 1972 or 1973 in this regard. No attempts have been made to obtain any existing records that may be located at the VAMC in Los Angeles. Thus, on remand, the RO or the AMC should undertake any available records from the Los Angeles VAMC. Lastly, the Board notes that the Veteran identified a medical research study from N.A.P. in his October 2012 VA Form 9, which he states supports his claim. The Veteran is reminded that he is free to submit any additional evidence which he believes supports his claim, and should be instructed to do so during the course of the remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records identified by the Veteran as relevant to the claim on appeal, to include any treatment records from the VAMC located in Los Angeles, California. To the extent there is an attempt to obtain any identified records that is unsuccessful, the claims file must contain documentation of the attempts made. The Veteran must also be informed of the negative results and be given opportunity to secure the records. 2. Contact the Veteran and request that he provide a copy of the research article he identified in his October 2012 VA Form 9. 3. After completing the above development, arrange for a review of the Veteran's claims file and any pertinent evidence in Virtual VA that is not contained in the claims files by an appropriate examiner in order to determine the nature, onset date and etiology of the Veteran's bilateral hearing loss. The Veteran need not be reexamined, unless the examiner determines that another examination is necessary. In the event that the Veteran is provided an additional examination, any indicated tests and studies should be performed. The examiner must convert the Veteran's January 1966 pre-induction pure tone thresholds from ASA standards to ISO-ANSI standards prior to rendering any opinion. Following a review of the evidence of record, the Veteran's military occupational specialty, the Veteran's history of in-service and any post-service noise exposure, the clinical findings of record, and with consideration of the Veteran's competent lay statements as to the onset of his hearing loss, the examiner must render an opinion as to the following: (a) Whether the Veteran was shown to have preexisting hearing loss as defined pursuant to 38 C.F.R. § 3.385 at the time he entered active duty service in August 1966. (b) Whether any preexisting hearing loss underwent an increase in severity during service; and if so, whether the increase can be clearly attributed to the natural progress of this disability. In providing this opinion, the examiner must also discuss the significance, if any, of the difference in the Veteran's hearing threshold levels at the time of the January 1966 pre-induction examination as compared to the hearing thresholds reported on the June 1968 separation hearing threshold levels. (c) Whether any current hearing loss is related to the Veteran's period of military service, to include in-service noise exposure. The examiner must be mindful that although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service. In providing the requested opinions, the examiner must consider any additional medical opinions of record, to include the March 2010 VA opinion. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. If another VA examination is deemed necessary, the Veteran must be advised of the importance of reporting to that examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of any notification letter sent to the Veteran advising him of the time, date, and location of any scheduled VA examination and must reflect that it was sent to his last known address of record. If he fails to report to any scheduled examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After completing the above actions, conduct any other notice or development deemed necessary. 6. Then, readjudicate the claim for service connection. If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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).