Citation Nr: 1326686 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-24 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Lincoln, Nebraska. 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 served on active duty from June 1982 to February 1985. He claims that he has bilateral hearing loss as a result of acoustic trauma in service. The Veteran's DD Form 214 reflects that he served as an M48-M60 Armor Crewman. He has reported acoustic trauma in service from tank firing, 50-caliber machine guns, M240 and M60 machine guns, and heavy equipment. The Board notes by way of background that the RO conceded acoustic trauma in service in its April 2011 rating decision and awarded service connection for tinnitus. The Veteran was provided with a March 2011 VA examination relating to his claim. The examiner recorded a diagnosis of bilateral sensorineural hearing loss and opined that it is less likely as not related to the Veteran's service. The examiner reasoned that temporary threshold shifts generally disappear in 16 to 48 hours, but if hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists, and the Veteran's "normal" hearing at separation verified that his hearing had recovered without permanent loss. The Board notes, however, that there is no objective medical evidence in the claims file showing that the Veteran's threshold shift was temporary. Audiological testing at the time of separation from service showed increased thresholds bilaterally. The Veteran asserts in his Form 9 substantive appeal that the performance of speech recognition testing with maximum speech recognition (MSR) decibel levels, which may exceed 80 decibels, is violative of VA regulations. The Board notes, however, that the Veteran has not cited any particular regulatory provision, and regardless, there is no regulatory support for this assertion. In fact, the Compensation and Pension Clinician's Guide (at 5.7.c.11) provides as follows: Speech recognition must be obtained with a VA-approved recording of the Maryland CNC Test. The audiologist presents word lists at increasing intensity levels until no further change in speech recognition score occurs. However, presentation levels will not exceed the patient's level of discomfort or 105 dB HL, whichever is lower. At the same time, the Board acknowledges that it appears that the Veteran intended to aver in his appeal that the decibel level used at the March 2011 VA examination exceeded his level of discomfort. In light of all of the above, the Board finds that a remand is necessary to provide the Veteran with a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the claims file includes VA treatment records from Martinez/Redding dated from April 2001 to January 2003, and then no subsequent VA treatment records until 2009. These more recent treatment VA records are from Grand Island/Omaha dated from Jun 2009 to August 2011, as well as a handful of records from White City dated in January 2011. While the Board acknowledges that the RO noted in the claims file that a review of the Veteran's CAPRI records was performed and no other records are relevant, nevertheless, given the scarcity of the treatment records in the claims file and the availability of electronic means of saving any CAPRI records to the Veteran's claims file, the Board finds that all of the Veteran's VA treatment records dated from 2003 to present from the Martinez/Redding, Grand Island/Omaha, and White City VA medical centers should be associated with the claims file (electronic or paper). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all of the Veteran's VA treatment records from the Martinez/Redding, Grand Island/Omaha, and White City VA medical centers dated since January 2003 and associate them with the claims file (electronic or paper). 2. After the above development has been completed, schedule the Veteran for a VA audiological examination to determine the nature and etiology of the Veteran's bilateral hearing loss. The claims folder should be provided to the examiner for review in conjunction with the examination. After reviewing the file, and conducting a thorough audiological examination, and identifying the nature of the Veteran's hearing loss, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's hearing loss is related to his claimed in-service noise exposure. Please note that acoustic trauma is conceded in this case based on the Veteran's military occupational specialty in service (Armor Crewman). Please ask the examiner to be cognizant of the Veteran's maximum discomfort level with regard to the maximum speech recognition decibel level in performing speech recognition testing (SRT), and to please note the maximum decibel level used. Please ask the examiner to address the fact that there was a threshold shift shown at the time of the Veteran's separation from service. The VA examiner should provide a comprehensive report including a complete rationale for all opinions and conclusions. If the VA examiner concludes that the Veteran's hearing loss is not related to service, the examiner must explain, in detail, the reasoning behind this determination. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). _________________________________________________ MICHAEL A. PAPPAS 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).