Citation Nr: 1328958 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-11 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2011 and February 2013, the Board remanded the issue for additional evidentiary development. 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 After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claim on appeal must again be remanded for further development. The Veteran has a current diagnosis of bilateral sensorinueral hearing loss. He reports that he served in the Army as a supply clerk but he was attached to an aviation unit and was exposed to daily helicopter noise. He also notes in-service noise exposure to machine guns and other smaller caliber weapons. He states that following service, he did some factory work where hearing protection was used. In response to the Board's October 2011 remand, a VA examination was conducted in November 2011. Unfortunately, a review of the examination report demonstrates that it is not fully responsive to the Board's October 2011 remand directions. The examiner opined that "based on the audiometric evidence, current hearing loss is not caused by or a result of military noise exposure." With regard to a rationale, the examiner merely noted that the Veteran's "military records indicate that his audiometric thresholds were within normal limits by VA standards throughout his military career with no evidence of any significant shift in thresholds." The Board finds that this opinion is not adequate. While the examiner notes in the report that the Veteran was exposed to acoustic trauma, the examiner did not consider this fact in the opinion as the basis of the opinion appears solely to be the lack of evidence demonstrating hearing loss in the service treatment records. The Board notes that the mere fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran's claim. Service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. §§ 3.303(d), 3.385 (2013). Based on the foregoing, the Board finds that another medical opinion must be obtained. Specifically, the examiner should determine whether the Veteran's current bilateral hearing loss is the result of conceded acoustic trauma sustained in service. A remand by the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder to the November 2011 VA audiologist or, if he/she is unavailable, to another suitably qualified VA audiologist for a clarifying opinion as to the nature and etiology of the Veteran's diagnosed bilateral hearing loss. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of in-service evidence of a hearing disability during service 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 hearing loss 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has contended that he had noise exposure in service. In particular, he has asserted that he was exposed to machine guns, other smaller caliber weapons and airfield noise. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including noise exposure. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2013), the Veteran's complete VA claims file, to include copies of all pertinent service treatment records, post-service treatment records and statements by the Veteran must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).