Citation Nr: 1337141 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-12 287 ) 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: Maxwell D. Kinman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to October 1980. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio. In February 2008, the Veteran testified at an RO hearing before a Decision Review Officer. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In a November 2011 decision, the Board reopened the Veteran's previous claim for service connection for left ear hearing loss and denied the claim on the merits. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). Thereafter, in a March 2013 single-judge Memorandum Decision, the Court set aside that part of the Board's decision that denied the claim and remanded the claim to the Board for further development and adjudication. The Board notes that, in the interim, it appears that the Veteran filed another request to reopen his claim for service connection for bilateral hearing loss at the RO; in connection with that claim the RO scheduled the Veteran for a VA audiological examination, which took place in May 2013. Thereafter, in a May 2013 rating decision, the RO again found that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss. However, as noted above, the issue of service connection for left ear hearing loss remains on appeal to the Board. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the VARO. VA will notify the appellant if further action is required on his part. REMAND Under the Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2, 19.9(a) (2013); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). The Court has held that once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In the aforementioned Memorandum Decision, the Court found that the Board erred by not providing the Veteran with a VA examination to determine the etiology of his left ear hearing loss. Although, as noted above, the Veteran has been afforded a VA audiological examination in May 2013 in connection with a new claim for service connection for bilateral hearing loss, that examination is inadequate with which to adjudicate the claim for service connection for left ear hearing loss which remains before the Board for appellate review. For purposes of applying the laws administered by VA, impaired hearing will only be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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 (2013). That said, to establish entitlement to 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, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. 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 compensation 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. Hensley v. Brown, 5 Vet. App. 155 (1993). Section 3.385 of Title 38, Code of Federal Regulations, does not preclude service connection for a current hearing disability where hearing was found to be within normal limits on audiometric testing at separation from service. Hensley, at 159. Review of the May 2013 VA examination report demonstrates that the examiner concluded that the Veteran's bilateral hearing loss was less likely than not caused by, or a result of, military service. Her rationale for this opinion was that the Veteran's in-service audiology examinations in March 1976 and September 1980 demonstrated normal hearing bilaterally. However, the Court has held that the absence of in-service evidence of a hearing loss disability is not always fatal to a claim for service connection. See Ledford v. Derwinski, supra; Hensley v. Brown, supra. Accordingly, the Board finds the VA examination to be inadequate and concludes that a remand is necessary to afford the Veteran another VA medical opinion with an adequate rationale. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); Barr v. Nicholson, supra. The Court has held that it is not mere review of the claims file that is determinative of the probative value of an opinion, rather, more so the discussion of the underlying medical rationale of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the VA examiner's opinion was based on an inadequate rationale, i.e., that the Veteran's hearing was normal in service and during his September 1980 service separation examination. On remand, the VA examiner must consider the Veteran's reports of noise exposure during service, taking into account that his military occupational specialty ("MOS") was that of a mortarman and he reported experiencing acoustic trauma during service without the benefit of hearing protection. The examiner should also consider the December 2003 letter from the Veteran's private audiologist, in which she opined that the Veteran's left ear hearing loss was due to a viral or ischemic assault in September 2003. Any additional relevant medical records, not currently on file, should be obtained and considered. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all available VA treatment records pertaining to the Veteran's left ear hearing loss that are not currently of record and associate those reports with the electronic record. Any negative reply should be noted. 2. Send the Veteran a release form(s) and ask him to identify any private medical providers that have treated him for his left ear hearing loss during the course of this appeal. Any records obtained that are not currently of record should be associated with the electronic record. Any negative reply should be noted. 3. Following completion of the above, forward the Veteran's claim to the examiner who performed the May 2013 audiology examination (only if she is available) and obtain another medical nexus opinion concerning the likelihood that the Veteran's left ear hearing loss is related or attributable to his active duty service, to specifically include his reports of acoustic trauma during service as a mortarman. The examiner must be provided a copy of this REMAND. The examiner must review the claims file, including all lay and medical evidence of record, to specifically include the December 2003 letter from the Veteran's private audiologist (along with pertinent examination results beginning in September 2003), as well as the Veteran's testimony from his February 2008 RO hearing. The examiner should opine as to the following: Whether it is "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) the Veteran's left ear hearing loss had its onset during service or is related to any incident of service. All opinions must be accompanied by a complete rationale. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. The examiner is specifically advised that a rationale which only takes into account findings of normal hearing during service will be deemed inadequate. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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. 2013). _________________________________________________ S. L. Kennedy 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).