Citation Nr: 1331277	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  13-21 639	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Lech, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1969 to January 1971.     
This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

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

The Board finds that additional development is required before the Veteran's claim for service connection for bilateral hearing loss disability is decided. 

The Veteran has asserted that he has bilateral hearing loss disability as a result of hazardous noise exposure sustained during service.  The Board concedes acoustic trauma during service, as the RO has granted service connection for tinnitus based on such exposure.  

A review of the Veteran's service treatment records reveals that at the time of his March 1969 entrance examination, audiometric evaluation demonstrated normal hearing bilaterally.  Reported pure tone thresholds, in decibels, were as follows:

HERTZ
500
1,000
2,000
3,000
4,000
6,000
RIGHT
10 
-10 
-10 
Not tested 
10 
Not tested
LEFT
10 
-10 
-10 
Not tested 
 10
Not tested

The Veteran's separation examination is undated, but attached to documents which show the date of January 1971.  The examination revealed a change in bilateral hearing, with a hearing threshold of 25 decibels at 4 kHz in the right ear, and of 35 and 50 decibels in the right and left ear, respectively, at 6 kHz.  Reported pure tone thresholds, in decibels, were as follows:

HERTZ
500
1,000
2,000
3,000
4,000
6,000
RIGHT
20 
Not tested 
5 
Not tested 
25 
35
LEFT
5
Not tested 
 10
Not tested 
10 
50

The Veteran's service medical records show that while he did not have bilateral hearing loss for VA purposes at his separation examination, his hearing demonstrated a significant threshold change during service.  The Veteran's separation examination also has a note on it, which reads: "Hearing low - not present in induction exam March 1969.  Request eval. at VAH."  This further supports the Veteran's contention that he experienced hearing loss in service, as does the fact that the Veteran filed a claim for hearing loss in March 1971, a mere two months after he separated from active service.  

The Board notes that prior to November 1, 1967, service department test 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).  It is presumed that the Veteran's audiometric examinations, performed in March 1969 and January 1971, were performed using the ISO-ANSI standards.  

The Board notes that the threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).

In September 2012, the Veteran underwent a VA examination to determine the nature and etiology of his hearing loss disability.  The examiner diagnosed bilateral sensorineural hearing loss.  She opined that the Veteran's bilateral hearing loss was not caused by or a result of acoustic trauma.  However, the September 2012 VA examiner did not adequately address the threshold shift in the Veteran's hearing acuity during service, and based her opinion solely on the assertion that the Veteran's hearing was normal at separation.  Additionally, the examiner's rationale was inconsistent with her opinion - she stated that the Veteran's MOS likely exposed him to noise and that it was possible that the weapons fire caused some damage to the Veteran's hearing, as there is some evidence of hearing loss at the separation examination, but concluded that the Veteran's bilateral hearing loss was not caused by or a result of in-service acoustic trauma.  She also did not address the Veteran's statements regarding the onset and continuity of his symptoms.    

The Board further finds that a June 2013 opinion is also inadequate for adjudication purposes.  The examiner did not address the hearing threshold shift in a way that would allow the adjudicator to ascertain whether the threshold shift was the result of in-service acoustic trauma, and he based his negative opinion on speculation that the hearing examinations themselves were improper and, therefore, could not be relied upon.  Additionally, the Board notes that the Veteran's January 1971 separation examination shows a handwritten note on it, which reads: "Hearing low - not present in induction exam March 1969.  Request eval. at VAH," which the June 2013 examiner did not discuss it in his opinion.  The June 2012 examiner also improperly relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion and did not consider the Veteran's statements of onset and continuity.  

Consequently, the Board finds that these opinions are inadequate.  The United States Court of Appeals for Veterans Claims (Court) has found examinations inadequate where, as here, the examiner did not comment on the Veteran's report of relevant injury in service and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, the Veteran should be provided a new VA examination to determine the nature and etiology of any current bilateral hearing loss disability.    

Current treatment records should be obtained before a decision is rendered with regard to this issue.  

Accordingly, the case is REMANDED for the following action:

1.  Request the Veteran to identify and provide authorization for VA to obtain medical records from VA and non-VA health care providers for the treatment of for bilateral hearing loss.   

2.  Then, obtain all pertinent VA medical records, not yet associated with the claims file, and non-VA medical records that are identified by the Veteran.  Associate those records with the file.  If any medical records are not available, the applicable provisions of 38 C.F.R. § 3.159 must be followed.

3.  Thereafter, regardless of whether additional documents are obtained, schedule the Veteran for another VA examination for his hearing loss claim.  The examiner should provide an opinion as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's bilateral hearing loss disability is related to service, including any in-service acoustic trauma, taking into account the Veteran's medical, occupational, and recreational history since service, and his claim of continuing symptoms since service.

4.  The RO/AMC should review the claims folder to ensure that all of the remand directives have been accomplished, and should take any additional steps necessary to fully comply with the Board's remand. 

5.  Thereafter, readjudicate the Veteran's pending claim 
in light of any additional evidence added to the record.  If 
the benefits sought on appeal remain denied, the Veteran 
and his representative should be furnished a supplemental 
statement of the case and given the opportunity to respond 
to it.  The case should then be returned to the Board, if 
in order, 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




_________________________________________________
Michael J. Skaltsounis
Acting 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) (2013).