Citation Nr: 1338015 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-24 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin. THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Ruda INTRODUCTION The Veteran served on active duty in the Marine Corps from August 1977 to August 1980. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, WI which denied service connection for bilateral hearing loss. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has bilateral hearing as a result of exposure to acoustic trauma as an infantry weapon repairman in an artillery unit while serving in the Marine Corps. The Veteran demonstrated a bilateral hearing loss disability for VA purposes on audiometric testing completed at an April 2010 VA examination. Also, the Veteran's DD-214 indicates the Veteran served as an infantry weapon repairman. Although the Veteran's specific MOS is not listed, all small arms/artillery repairers have been identified as occupations where there was at least a moderate probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). Accordingly, the Board concedes the Veteran was exposed to in-service noise trauma. Therefore, two of the three requirements for service connection for hearing loss have been met: (1) there is a current bilateral hearing loss disability as defined in section 3.385 and (2) there was an injury (military acoustic trauma) sustained in service which is conceded and noted to be consistent with the Veteran's duties and circumstances in service as an infantry weapon repairman The Veteran was afforded a VA examination in April 2010 to determine the etiology of any current hearing loss disability. However, for the reasons expressed below, the Board finds that the opinion is inadequate for the purpose of deciding this claim, and thus, a remand is required in order to obtain an addendum opinion on etiology. The April 2010 examiner opined that it was less likely than not that the Veteran's hearing loss was related to service. In providing this opinion, it was noted that hearing loss was not present at separation from service, and the examiner noted that there was no significant hearing threshold shifts from the Veteran's entrance examination and his separation examination because the shift was 5dB or less which is considered test-retest variability. Contrary to the examiner's rationale, the Veteran did experience a decline in his hearing above 5dB based on his entrance and separation examination audiogram results, as the threshold shift at the lower registers in the left ear was a 10dB shift from entrance exam to separation exam. See August 1977 and August 1980 service treatment records. Thus, the VA examiner's opinion is based on an inaccurate factual premise. The Board cannot address the Veteran's contention that an in-service event (noise exposure) caused hearing loss first detected after service, which is essentially a 'delayed onset' or 'latent onset' theory of entitlement without these items being addressed. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). Accordingly, the case is REMANDED for the following actions: 1. Request the April 2010 VA examiner review the claims file, including a copy of this REMAND and any additional evidence provided and offer an addendum opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss disability is related to service, including to noise exposure in service. In offering this opinion, the examiner should note that the Board finds that the Veteran was exposed to hazardous noise in service. The examiner should discuss any hearing threshold shift reflected in the Veteran's entrance to separation examinations as well as any intervening cause of the bilateral hearing loss if not from the in-service noise exposure. The examiner must state whether there are medical reports or studies that indicate that noise induced hearing loss can have a delayed onset, including years after the exposure event(s). The examiner should reconcile any such studies with his medical opinion. If the April 2010 examiner is not available to provide an opinion, make arrangements for the file to be reviewed by another examiner who should be requested to supply the requested opinion. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It would be helpful if the examiner would use the following language, as needed: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. After completing the above, and any other development deemed necessary, the Agency of Original Jurisdiction should readjudicate the claim. If the benefits sought on appeal are not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. OSBORNE 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).