Citation Nr: 1332637 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-17 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 Reason for Remand: To obtain a clarifying medical opinion. To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Organic diseases of the nervous system - such as sensorineural hearing loss - will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. 38 C.F.R. § 3.385. '[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.' 38 C.F.R. § 3.385. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service or even within the one-year presumptive period following discharge, although a hearing loss disability by the standards of § 3.385 must be currently present to be considered a current disability. If there is current hearing loss disability, then service connection is possible if the current disability can be adequately linked to the Veteran's military service as opposed to other unrelated factors. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), 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, 157 (1993). In this case, there is evidence of in-service noise exposure, although it is derived only from the Veteran's lay statements. The Veteran's military occupation specialty (MOS) is not listed on his DD-214; however, "Parts Clerk (Clerical)" was noted as the related civilian occupation. The DD-214 does not indicate the Veteran participated in combat during service. The Veteran's personnel records confirm that he served aboard the U.S.S. Buchanan. He contends his primary duties were deck work and that during general quarters, he was a "powder monkey for a 5 inch gun and ammo hauler" and was aboard the ship during frequent gunnery practices without hearing protection. See June 2010 VA Examination notes. The Veteran believes that his time spent loading the guns and being present while they were fired is the cause of his current bilateral hearing loss. See February 2011 Notice of Disagreement. As to hearing loss during service, the Veteran's service treatment records (STRs) do not document any reports of hearing difficulties or problems. No pure tone audiograms were performed during service. The only evidence regarding hearing in the STRs are normal whisper tests showing 15/15 hearing bilaterally at both the June 1961 entrance examination and the June 1965 separation examination. Review of the VA treatment records following service indicates the Veteran has a current diagnosis of bilateral hearing loss for VA purposes as per 38 C.F.R. § 3.385. He first sought treatment for hearing loss in January 2010 and reported he had suffered from hearing loss for the past 15 years. He was referred to Audiology and seen in February 2010 when bilateral sensorineural hearing loss was diagnosed. Thereafter, the Veteran was issued hearing aids in March 2010. In June 2010, the Veteran underwent an audiogram at his VA examination. Pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 15 55 95 85 Left Ear 15 10 70 75 80 Speech discrimination scores were 92 percent in the right ear and 88 percent in the left ear. Given the claimed existence of acoustic trauma in service and the current diagnosis of bilateral hearing loss, the remaining question is whether there is a link or nexus between the Veteran's hearing loss and service. At the June 2010 examination, the examiner reviewed the Veteran's claims file. The examiner considered the Veteran's contentions regarding his exposure to noise during service and his history of occupational and recreational noise exposure. The Veteran reported that from 1968 to 2008, he worked as a truck driver and a carpenter. His non-occupational noise exposure consisted of the use of lawn care equipment and shotgun noise while quail hunting. The examiner documented his claim for tinnitus and concluded that the "Veteran provides a credible account of tinnitus following 5 inch gunnery practice during the shakedown cruise of the U.S.S. Buchanan. As powder monkey and ammo hauler, he would have had sufficient exposures to acoustic traumas to cause tinnitus." In regard to hearing loss, the examiner concluded: "Without pure tone hearing tests or similar documents, the issue of onset of hearing impairment during service becomes one of mere speculation." 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). See Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, 'without resort to mere speculation,' must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). Given that normal hearing upon separation from service is not necessarily fatal to a service connection claim for hearing loss, the absence of pure tone audiograms in service should not necessarily bar the Veteran from bringing a successful claim if there is other evidence in the record that establishes the link between acoustic trauma in service and the Veteran's current hearing loss. Thus, the Board finds the June 2010 examiner's opinion inadequate as it does not consider all the evidence of record and fails to provide a sufficient rationale as to why, even if one were to assume normal hearing upon separation from service, it is likely, unlikely or at least as likely as not that the Veteran's current hearing loss was caused by his claimed in service noise exposure. The Board notes that the Veteran is competent to report that he was exposed to acoustic trauma and the Board finds his reports credible. However, the record does not indicate that the Veteran has the medical expertise to diagnose or opine as to the etiology of a bilateral hearing loss disability. In this respect, the origin of a hearing loss disability is a matter of medical complexity and is often the subject of conflicting opinions. Thus, the Board cannot assign any significant weight to the Veteran's lay assertions about a diagnosis or etiology of his hearing loss. In addition, the Board is mindful that it cannot make its own independent medical determinations and is prohibited from exercising independent judgment to resolve medical questions. Id; see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Willis v. Derwinski, 1 Vet. App. 66 (1991). In order to give the Veteran every consideration with respect to the present appeal and to ensure due process, a clarifying medical opinion is needed that provides a more substantive rationale for the conclusion that without pure tone threshold tests at separation from service it is not possible to provide an opinion as to whether the Veteran's current hearing loss was caused by acoustic trauma in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims folder to the June 2010 VA examiner or, if the June 2010 VA examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's bilateral hearing loss. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. §4.1, the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner should note 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 asserted that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. Following consideration of the record, the examiner should then 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 experienced therein. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure 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 in service as opposed to some other cause, such as occupational or recreational noise exposure as reported by the Veteran. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). This explanation must consider the totality of the evidence and a discussion of the facts and medical principles would be helpful to the Board. 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 is not granted to the fullest extent, 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). _________________________________________________ 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).