Citation Nr: 1328675 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-09 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1971. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefit sought on appeal. The issue of entitlement to service connection for a sleep disorder was also denied in the October 2010 rating decision. The Veteran submitted a Notice of Disagreement to both claims in January 2011 and a Statement of the Case was issued in March 2011. In April 2011, the Veteran submitted a timely substantive appeal. However, the Veteran indicated that he was only appealing the issue of entitlement to service connection for bilateral hearing loss, not for a sleep disorder. As such, the issue of entitlement to service connection for a sleep disorder is not before the Board and will not be discussed. In June 2011, the Veteran testified before the undersigned Veterans Law Judge, via videoconference hearing. A transcript of that proceeding has been prepared and incorporated into the evidence of record. 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 on his part. REMAND While the Board regrets the delay that a remand of this case will cause, after a careful review of the Veteran's claims file the Board finds that the issue on appeal must be remanded for further development and to afford the Veteran every consideration with respect to the present appeal. The Veteran contends that his current hearing loss is related to his military service. He testified at the June 2011 Board hearing that he was exposed to hazardous noises while performing his duties as a turbine engine mechanic and was not provided with proper hearing protection. According to the Veteran's service treatment records, there is no evidence of complaints, treatment, or diagnosis of hearing loss or any bilateral ear disorders. The Veteran's October 1967 entrance and March 1971 separation examinations are also both silent of any hearing loss. The Veteran's Form DD 214 reflects his military occupational specialty was an aircraft turbine engine repairman. The Veteran was also awarded the National Defense Service Medal, the Vietnam Service Medal with 4 Bronze Service Stars, the Republic of Vietnam Campaign Medal, and Expert (Rifle). The Veteran was afforded a VA audiological examination in September 2010 where he reported noise exposure to helicopter engine and gunfire during his military service. He was diagnosed with bilateral high-frequency sensorineural hearing loss. The examiner opined that the Veteran's current disability was not caused by, or the result, of his military service because the Veteran's audiometric hearing evaluations at the time of enlistment and discharge both revealed normal hearing sensitivity at all frequencies, bilaterally. As such, the examiner opined the Veteran's current hearing loss was not caused by or the result of his military noise exposure. The Board points out that the absence of service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, to establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The Board finds the September 2010 VA opinion inadequate. Here, the VA examiner's rationale focused on the absence of bilateral hearing loss in service treatment records, without further discussion to include explaining the effects of the Veteran's in-service noise exposure, post-service occupational noise exposure, and his lay statements, etc. Based on the foregoing, clarification is needed regarding the etiology of any current bilateral hearing loss, including a discussion of the effects of any in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155 (1993). On remand, the claims file should be returned to the September 2010 VA examiner for an addendum which includes an opinion as to whether the Veteran's bilateral hearing loss is at least as likely as not related to his reported in-service noise exposure. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the examiner who conducted the September 2010 VA audiological examination (or if unavailable, to another appropriate VA reviewer). In an addendum, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure. In providing this opinion, the examiner should acknowledge the Veteran's military occupational specialty, his lay statements, and his complete post-service history of noise exposure, including during his employment. The fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to find no nexus to service. The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All additional appropriate testing should be accomplished if necessary and all findings and conclusions should be set forth in a legible report. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings and lay statements. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim, considering all applicable laws and regulations. The AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should 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 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). _________________________________________________ BARBARA B. COPELAND 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).