Citation Nr: 1338778 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-18 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to a compensable disability rating for right ear hearing loss. ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, continued a noncompensable rating for right ear hearing loss and denied service connection for left ear hearing loss. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and Veterans Benefits Management System ("VBMS") system to insure a total review of the evidence. 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 The Board must remand the left and right ear hearing loss disability claims for a new VA medical examination. The remand instructions pertain only to the left ear service connection claim. However, in order to adjudicate the right ear increased rating claim, the left ear service connection must first be resolved. The Veteran contends that his current left ear hearing loss is related to an injury sustained in service. While in service, he served in the armory unit, and reports that during that time he was ambushed and struck in the head with an explosive. He asserts that was exposed to noise from rockets and grenades while in service, and that he did not have adequate hearing protection. He also reports that post military service he was exposed noise while working in construction for seven years, and during recreational hunting, and reported no use of hearing protection. (See July 2011 VA examination) A new VA examination and opinion are needed on the issue of service connection for left ear hearing loss. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board notes that the VA examinations and opinions dated March 2012 and April 2013 are not adequate to adjudicate the claim of service connection. The examiners found that the Veteran's left hearing loss was not related to service. The rationale was that the Veteran's service treatment records are silent for complaints of hearing loss, as is a April 1970 examination, which noted hearing as normal. The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiners did not provide a rationale as to why it was significant that the Veteran's hearing was noted as "normal" in service in opining that the Veteran's current hearing loss was not related to service. In other words, the examiner did not provide an adequate opinion as to whether the Veteran's current hearing loss could be a delayed onset from acoustic trauma in service. In light of the foregoing, the Board finds that the Veteran should be scheduled for another VA examination to include an opinion. The examiner should offer an opinion as to whether the left ear hearing disability is related to service. All lay and medical evidence should be considered, to include any assertions of continuity of hearing loss symptomatology that may be made by the Veteran, as well as statements regarding in-service and post-service noise exposure, and lack of hearing protection. In this regard, the Board notes that the Veteran is competent to report observable symptomatology, and the lack of contemporaneous medical records does not, in and of itself, render such lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). However, this may be weighed against other lay and medical evidence of record. Finally, the Board has determined that the adjudication of the Veteran's claims for entitlement to a compensable disability rating for right ear hearing loss must be deferred pending development for the matter of entitlement to service connection for left ear hearing loss, as the outcome of the adjudication of the left ear service connection claim is relevant to the Veteran's right ear increased rating claim. 38 C.F.R. §§ 3.383 and 4.85 provide certain circumstances for rating nonservice-connected hearing loss as if service connected when evaluating unilateral hearing loss. Bilateral hearing loss is evaluated under a different standard. As the outcome of the left ear service connection issue will alter the basis of rating the service connected right ear, the issues are inextricably intertwined and therefore the Board must defer adjudicating the increased rating for right ear hearing loss claim until the claim of service connection for the left ear is resolved. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with an appropriate medical professional to determine the nature, extent, and etiology of the Veteran's current left ear hearing loss. The claims folder, including a copy of this remand, must be made available and reviewed by the examiner for review in conjunction with the examination. A notation to the effect that this review has taken place should be annotated in the evaluation report. After reviewing the claims file, the examiner is requested to provide a medical opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed left ear hearing loss is related to the Veteran's in-service injury or 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. A complete rationale for all opinions and conclusions reached should be provided. The examiner should consider the service treatment records, the Veteran's lay statements, as well as VA reports beginning in 1970 concerning the Veteran's hearing. Additionally, the examiner should also consider the Veteran's in-service injury and noise history and find credible the Veteran's exposure to acoustic trauma in service. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the claims for service connection for left ear hearing loss and increased rating for right ear hearing loss. If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The appellant has the right to submit additional evidence and argument on the 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 CONTINUE ON THE NEXT PAGE 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). ______________________________________________ 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) (2013).