Citation Nr: 1338075 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-21 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to a higher initial rating for service-connected left ear hearing loss, currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1989 to November 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Although the Veteran was scheduled for a Travel Board hearing on May 21, 2009, he failed to appear for the hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, the hearing request is considered withdrawn. In November 2011, the Board reopened the claim for service connection for right ear hearing loss and remanded the issue along with the issue regarding higher rating for left ear hearing loss for additional development. The case has been returned to the Board and is ready for further review. 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 an addendum opinion and to obtain information regarding the private audiogram report. In a January 2012 VA examination report, the VA examiner stated that the right ear hearing loss is less likely than not causally or etiologically related to service. The rationale was that there were no significant threshold shifts when comparing the enlistment examination and the separation examination reports. The examiner also stated that the Veteran had normal hearing at separation. However, the fact that the Veteran's hearing was normal at discharge in and of itself is not dispositive as to whether the current hearing loss is related to service. The Board finds this examination report to be inadequate for evaluation purposes because the absence of documented disorders on service entrance or discharge is not fatal to a claim for service connection. When the Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). The United States Court of Appeals for Veterans Claims (Court) in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In addition, the private audiogram performed in April 2008 contains an uninterpreted pure tone audiometry graph which is not in a format that is compatible with VA guidelines. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The audiological examination does not indicate whether the Maryland CNC word list was used. The Court has given specific guidance to VA in this situation. If it is not clear from the examination report whether the Maryland CNC word list was used, the answer to this question cannot otherwise be determined, and the report is relevant to the disposition of the claim, the report must be returned for clarification. Savage v. Shinseki, 24 Vet. App. 259 (2011) (citing 38 C.F.R. §§ 4.2, 19.9(a)). The audiometric test scores on the April 2008 examination appear in graph format only. In Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court held that it was unable to interpret the results of such a graph, because this would constitute a factual finding it is precluded from making. Clarification should also be requested with regard to the audiometric scores, specifically, that numerical values for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz, as well as the average of these scores, be provided. Accordingly, the RO should request that the private examiner who provided April 2008 audiogram provide evidence of numerical interpretation of the private audiogram graph. If the RO is unable to obtain interpretation of the graph by the audiologist who provided the audiogram, the RO should have a VA examiner provide the requested interpretation. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After securing the necessary authorization from the Veteran, the AOJ should contact the private audiologist who examined the Veteran in April 2008. The examiner should be asked to describe whether speech discrimination testing was performed, what the results were, and if so whether the Maryland CNC speech recognition test was utilized. . Also, request that numerical values be provided for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz, as well as the average of these scores for the above noted examination. The RO must document all steps taken to obtain clarification and include any responses in the Veteran's VA claims folder. 3. The Veteran's file should be forwarded to the January 2012 VA examiner for an addendum opinion. The claims file and any pertinent electronic medical evidence must be reviewed by the examiner. The examiner is requested to offer comments and an opinion as to whether any currently diagnosed right ear hearing loss is related to documented noise the Veteran was exposed to during service or is otherwise related to service. The examiner must consider all of the pertinent evidence of record, to include consideration of the Veteran's statements. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Further, the examiner must not rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. §3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate. If it is the opinion of the examiner that the Veteran's current right ear hearing disorder is the result of any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate 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) (2013).