Citation Nr: 1334613 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-13 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from September 1987 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and September 2008 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Paul, Minnesota. The issues on appeal were previously before the Board in June 2010 when they were remanded for additional evidentiary development. Also before the Board in June 2010 were claims of entitlement to service connection for tinnitus and for a right foot disorder. Service connection for these disabilities was granted by the RO in a September 2011 decision. The issues are no longer on appeal. At the time of the June 2010 Board remand, it was observed that the Veteran had raised additional claims which had not been adjudicated by the RO and were referred back for appropriate action. No action has been taken to date. Therefore the Board is again referring back to the RO, for appropriate action, the following claims: (i) entitlement to service connection for chemical dependency; (ii) entitlement to an increased evaluation for strain of the left knee with degenerative joint disease, currently evaluated as 10 percent disabling; (iii) entitlement to an increased evaluation for degenerative joint disease of the right knee, currently evaluated as 10 percent disabling; and (iv) entitlement to a total disability evaluation based on individual unemployability. REMAND The Veteran seeks entitlement to service connection for bilateral hearing loss. In its June 2010 remand, the Board directed that he be afforded a VA audiological examination to determine the etiology of any hearing loss found on examination. When forming the etiology opinion the examiner was directed to take into account the Veteran's military occupational specialty, the objective medical findings in the service treatment records, statements from the Veteran, and the Veteran's history of in-service and post-service noise exposure. A VA examination was conducted in August 2011. The examiner diagnosed the presence of bilateral sensorineural hearing loss. With regard to etiology, the examiner wrote that audiometric thresholds were normal by VA standards throughout the Veteran's military service, with no evidence of a significant threshold shift from enlistment to separation. 38 C.F.R. § 3.385 (2013); Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Based on the audiometric evidence, the examiner opined that the Veteran's current hearing loss was not caused or the result of military noise exposure. The Board finds this examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner failed to consider the Veteran's military occupational specialty, the statements of the Veteran that he first noticed hearing loss during active duty, and the lack of any occupational or recreational noise exposure after service discharge. The failure of the examiner to address this evidence in formulating his opinion as to the etiology of the hearing loss does not comply with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The lack of a showing of a disability during service does not preclude establishing entitlement to service connection. The examiner's opinion does not address whether the Veteran's currently diagnosed hearing loss disability was caused by any incident in service, regardless of when it was first diagnosed or shown. Under these circumstances, the Board finds that an addendum to the examination report is required to address the deficiencies noted above. The claim of entitlement to service connection for an acquired psychiatric disorder, to include depression, is inextricably intertwined with the claim of entitlement to service connection for hearing loss, as the Veteran claims it is due to a service-connected disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, it must also be remanded pending completion of the development directed below. Accordingly, the case is remanded for the following action: 1. The claims file must be returned to the examiner who conducted the August 2011 VA examination and request that the examiner prepare an addendum to the examination report which considers the Veteran's military occupational specialty, the objective medical findings in the service treatment records, the Veteran's history of in-service and post service noise exposure, and lay statements of the Veteran when determining whether the Veteran's current hearing loss is related to his military service, to include as due to acoustic trauma. Prior to forming an opinion, the examiner is directed that regardless of whether hearing loss is shown in service or at separation from service, service connection can still be established if medical evidence shows that the hearing loss is actually due to incidents during service, to include exposure to noise. After considering the audiometric findings both in service and subsequent to service, and discussing the role, if any, the Veteran's military occupational specialty, and lack of post service noise exposure, had on any current hearing loss, as well as the Veteran's testimony that he first noticed his hearing loss in service, the examiner must specifically address the question of whether any degree of hearing loss is related to his military service, to include exposure to acoustic trauma. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The phrase "without resorting to speculation" must reflect the limitations of the medical community at large and not those of a particular examiner. If the examiner who conducted the August 2011 audiological examination is not available, the claims file and all electronic records must be reviewed by an appropriate health care professional who must provide the opinion requested above. If this examiner determines that the requested opinion cannot be provided without another physical examination of the Veteran, such an examination must be scheduled. 2. After the development requested has been completed, the examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures must be implemented. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If an issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).