Citation Nr: 1328002	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  11-03 952	)
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


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

Antoinette Chance, Associate Counsel



INTRODUCTION

The Veteran served on active duty with the United States Army from November 1963 to November 1965.

This matter comes to the Board of Veteran's Appeals (Board) on appeal of a December 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which declined to grant service connection for a bilateral hearing loss disability.

The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal.

The issue of entitlement to service connection for tinnitus has been raised by the Veteran in his November 2010 Notice of Disagreement (NOD), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

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

Remand for the claim of service connection for a bilateral hearing loss disability is required for compliance with VA's duty to assist the Veteran in substantiating his claim with an adequate medical examination and/or opinion. 38 U.S.C.A. §§ 5103; 5103A; 38 C.F.R. § 3.159.

In the instant case, the Veteran contends that he is entitled to service connection for his current bilateral hearing loss disability because it was caused by exposure to excessively loud noise and weapons fire in basic training and as a member of the Honor Guard. The Veteran was afforded a VA audiology examination in October 2009, in which the examiner opined that the Veteran's current hearing loss disability was not as least as likely as not caused or aggravated by his active military service. For reasons set forth below, the Board finds that this examination opinion is inadequate. 

Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's "evaluation of the claimed disability will be a fully informed one." Id. (internal quotation marks omitted); Green v. Derwinski, 1 Vet. App. 121. 124 (1991).

First, the Board finds that there is no indication that the examiner converted the pre-November 1967 test results from American Standards Association (ASA) units to International Standard Organization (ISO) units when reviewing the claims file. 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). Significantly, it appears that the November 1963 pre-induction and the September 1965 separation hearing evaluations discussed below were conducted using the ASA standards. Therefore, in order to facilitate data comparison, the ASA standards must be converted to ISO -ANSI standards. 

Secondly, based upon the non-converted results, it was the examiner's opinion that it was less likely than not that the Veteran's hearing loss was related to military noise exposure because of the examiner's factual finding that his high frequency hearing acuity was "essentially normal" when his entrance and separation examinations are compared. However, 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.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for a hearing loss disability where there is credible evidence of acoustic trauma due to significant 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).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Finally, the Board notes that upon conversion of such results to ISO -ANSI standards, there indeed appears to be a significant shift in the mid-frequency hearing acuity during active service, which was not adequately discussed by the examiner and may be an indication that the Veteran's hearing was not in fact "normal" at separation from service. The examiner needs to discuss whether the low and mid frequency shifts in hearing acuity that occurred during active service was at least as likely as not the initial indication of the Veteran's current hearing loss disability. 

For reference purposes, the conversion results are as follows: (For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5) to the pre- November 1967 ASA results respectively):

November 1963 service entrance examination- pure tone thresholds (in decibels)

500
1000
2000
3000
4000
Right
15
15
0
25
20
Left
10
15
5
25
20

September 1965 service separation examination -pure tone thresholds (in decibels)

500
1000
2000
3000
4000
Right
30
25
25

20
Left
30
25
25

20



October 2009 VA audiology examination for service connection purposes- pure tone thresholds (in decibels):


500
1000
2000
3000
4000
Right
85
80
70
60
70
Left
20
30
35
50
55

Clarification is required to provide an adequate discussion and rationale for the examiner's medical opinion and to ensure the correct bases were used in providing such opinion.

Further, the Board notes that the Veteran submitted additional private medical records after October 2009 VA examination. Consideration of this evidence may be helpful to the examiner in formulating a medical opinion based upon the record in its entirety.

Lastly, review of the record suggests that the Veteran is currently receiving ongoing VA treatment. Specifically, the record contains VA treatment records through November 2009, however, no records from November 2009 are contained in the claims file. Such treatment records must be obtained and associated with the claims file for review by the examiner providing the clarification opinion. There is no indication that the Veteran is currently receiving ongoing treatment with a private physician.

Accordingly, the case is REMANDED for the following action:

1. Obtain updated VA treatment records related to hearing loss from November 2009 to present, to include full audiometric results from Altoona Medical Center and all associated clinics. Associate such records with the claims file.
2. AFTER COMPLETION OF THE ABOVE, provide the claims file to a qualified examiner, other than the October 2009 examiner, skilled in the diagnosis and treatment of hearing disorders, for the purpose of reviewing the file and providing an adequate opinion as to whether the Veteran's current diagnosis of a sensorineural hearing loss disability is at least as likely as not (50 percent probability or greater) caused or aggravated by his military service.  If the examiner believes that such an opinion cannot be made without an additional examination of the Veteran, then such an examination should be scheduled.

The examiner must indicate that the required conversion from American Standards Association (ASA) units to International Standard Organization (ISO) units was relied upon in formulating any opinion.

Further, the examiner should opine whether there was an in-service threshold shift, and if so whether it is at least as likely as not that the in-service threshold shift indicates the onset of the Veteran's current hearing loss disability (please refer to charts above). If such shift is not clinically significant, the examiner must state so with supporting rationale.

A full and complete rationale for any opinion expressed is required. The examiner must address the allegations in the lay evidence of record in light of the fact that lay testimony can be sufficient to establish a nexus. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then re-adjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time 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 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 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).