Citation Nr: 1326812 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-25 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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 In furtherance of attempting to substantiate his claim for service connection of bilateral hearing loss, the Veteran was afforded a VA examination in June 2012. Examination resulted in the assessment of bilateral hearing loss, but no etiological opinion was offered as the examiner did not have the claims file, which includes the Veteran's service treatment records, for review. In December 2012 the VA examiner entered an addendum opinion, having then had the benefit of reviewing the claims file. She offered a negative etiological opinion stating that the service treatment records contained 2 hearing evaluations at the time of entrance and that one indicated a slight sensitivity loss at 4,000 Hz in the left ear, but otherwise normal hearing at induction, and one that showed normal hearing bilaterally. She also noted that the Veteran's separation examination showed normal hearing bilaterally, and that these evaluations did not demonstrate a threshold shift. She concluded that it was her "clinical opinion that the Veteran's hearing loss is less likely as not due to noise exposure during military service." VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. The VA examiner's opinion is lacking in rationale. The examiner concluded that it is less likely than not that the Veteran's bilateral hearing loss is attributable to noise exposure, although it appears that she is referencing the lack of a threshold shift in this regard. However, the Board cannot extrapolate in this regard. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Notably, service connection for tinnitus has been awarded on the basis of in-service exposure to acoustic trauma. Therefore the opinion is inadequate and must be returned. 38 C.F.R. § 4.2. Moreover, in rendering any opinion, the examiner must specifically consider the presumption of soundness. When no defect is noted at the time a Veteran enters service, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable (i.e., undebatable) evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2012). A history of the pre-service existence of a condition recorded at the time of the entrance examination does not constitute a notation of such a condition, and a claimant's condition is not "noted" when the induction examination does not contain a medical diagnosis by the examiner. See 38 C.F.R. § 3.304(b)(1). The examiner on the induction examination found hearing levels in excess of 20 decibels at 4,000 Hz with respect to the left ear. In that regard, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels and higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, as a hearing loss disability was not diagnosed by the examiner on the entrance examination, the Veteran is presumed sound at entry. Accordingly, it must be determined whether the presumption of soundness is rebutted by clear and unmistakable evidence. If either prong of the presumption of soundness is not rebutted, regarding the audiologist's opinion, it must be noted that the absence of any documented in-service hearing loss is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The requirements for service connection for hearing loss need not be shown by audiometric testing during a claimant's period of active duty in order for the claim to be granted. 38 C.F.R. § 3.385 (2012). Rather, service connection for a bilateral hearing loss disability may be granted where there is credible evidence of acoustic trauma due to noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner that offered the December 2012 opinion for an addendum opinion. If the December 2012 VA examiner is not available, the claims file must be available to another appropriate health care provider. After a review of the claims file, the author of the December 2012 VA opinion or other health care provider MUST respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: a. State whether it is clear and unmistakable (obvious, manifest, and undebatable) that a hearing loss disability of the left ear pre-existed active service. b. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing hearing loss WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. c. If any responses requested above are negative, provide an opinion as to whether the current hearing loss disability at least as likely as not (a probability of 50 percent or greater) began in or is related to active service, to include as due to exposure to noise. In this regard, the examiner is advised that service connection for tinnitus has been awarded based upon in-service exposure to acoustic trauma. The examiner should address the significance, if any, of any shift in thresholds or lack thereof in service. d. With respect to right ear hearing loss, provide an opinion as to whether the current hearing loss disability at least as likely as not (a probability of 50 percent or greater) began in or is related to active service, to include as due to exposure to noise. In this regard, the examiner is advised that service connection for tinnitus has been awarded based upon in-service exposure to acoustic trauma. The examiner should address the significance, if any, of any shift in thresholds or lack thereof in service. It is also noted that the absence of any documented in-service hearing loss is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). A claimant need not have hearing loss in service in order for post service hearing loss to be due to in-service noise exposure. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 "does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service"). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is 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). _________________________________________________ S. S. TOTH 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).