Citation Nr: 1330256 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-29 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. When the case was previously before the Board in May 2011, the Board denied the Veteran's claim of entitlement to service connection for hearing loss of the right ear and remanded the issues of entitlement to service connection for tinnitus and entitlement to service connection for hearing loss of the left ear. In a May 2012 rating decision, the Appeals Management Center (AMC) granted service connection for tinnitus. As this represents a total grant of benefits sought on appeal, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran claims that he is entitled to service connection for left ear hearing loss because it is the result of exposure to excessive noise in service. Specifically, in his August 2007 VA Form 9, the Veteran alleges in-service noise exposure during daily artillery barrages using 105 mm Howitzers during the Tet Offensive. He also stated that he immediately noticed hearing loss that has continued to the present time. The record contains VA audiological examination reports dated in September 2006 and June 2011. The Board remanded the Veteran's claim for service connection for left ear hearing loss in May 2011 in part to schedule the Veteran for a new VA examination in order to determine the nature and etiology of his claimed left ear hearing loss. In the May 2011 remand, the Board noted that despite the September 2006 VA examiner having provided an opinion against the Veteran's claim, an additional medical opinion was needed. The September 2006 VA examiner determined that the Veteran's separation examination documented normal hearing acuity for the left ear, and that there was no evidence of a standard threshold shift for the left ear when a comparison was made between the separation examination and the enlistment examination. The examiner therefore concluded, after reviewing the claims file, that the Veteran's left ear hearing loss is less likely as not the result of military noise exposure. Unfortunately, the June 2011 VA examiner provides essentially the same opinion. Notably, the June 2011 VA examination report states that the Veteran's hearing loss is not caused by or a result of military noise exposure. The examiner noted that the pre-induction audio examination dated in June 1967 reveals normal hearing acuity and the April 1969 separation audio examination also reveal normal acuity. Therefore, the examiner stated that comparison of the 1967 pre-induction audio examination to the 1969 separation audio examination does not reveal a standard threshold shift bilaterally. The examiner concluded that the issue of whether the Veteran's left ear hearing loss originated during the one-year period immediately following his June 1969 separation from service could not be resolved without resort to mere speculation because there is no audiological data during the one-year period immediately following the Veteran's separation from service. 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 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the June 2011 VA examiner found that any current left ear hearing loss was not related to service because there was no standard threshold shift when the Veteran's hearing at the pre-induction examination in 1967 is compared to the 1969 separation examination. The June 2011 examiner did not provide any explanation regarding the negative opinion for the left ear hearing loss claim other than the lack of medical evidence of standard threshold shift at the time of service separation. As noted above, the law does not necessarily require that hearing loss manifest in service. It would have been helpful if the examiner brought her expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. The Veteran's Form DD-214 indicates that his duty assignments included a military occupational specialty (MOS) of field artilleryman. As such, hazardous noise exposure during service is conceded. However, actual hearing loss (especially that established by 38 C.F.R. § 3.385) is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to military service by lay testimony. Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Based on the foregoing, the Board finds that this matter should be remanded and that, upon remand, the RO should schedule another VA audio examination by a new VA examiner, for the purpose of determining whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years. Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, while it is noted that hearing loss meeting the criteria of 38 C.F.R. § 3.385 is not a condition capable of lay diagnosis, the Board finds that the examiner, in rendering an opinion, should consider the Veteran's statement in his VA Form 9 that he noticed hearing loss in service which has continued to the present time. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided a VA audio examination by an examiner other than the examiners who conducted the September 2006 and June 2011 VA examinations in order to determine the nature and etiology of any currently present left ear hearing loss. The examiner must review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left ear hearing loss is etiologically related active military service. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service treatment records, and statements, specifically the August 2007 statement in the Veteran's VA Form 9 that he noticed hearing loss in service and that it has continued ever since. The examiner must provide a rationale for the opinions expressed. In rendering the opinion, the examiner 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. In rendering the above opinions, the examiner is advised 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). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental Statement of the Case 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).