Citation Nr: 1338905 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 13-07 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, granting service connection for posttraumatic stress disorder (PTSD), and denying, among other issues, the claim of entitlement to service connection for bilateral hearing loss. The Veteran had previously filed claims of entitlement to service connection for prostate cancer (secondary to herbicide exposure) and bilateral hand numbness. However, in his March 2013 appeal to the Board, the Veteran clearly indicated that he only desired to pursue an appeal on the matter of entitlement to 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 appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for bilateral hearing loss. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was afforded a VA audiology examination in March 2012. The VA examiner confirmed that the Veteran suffered from bilateral hearing loss. However, the examiner opined that it was not at least as likely as not due to military service because there was no evidence of in-service hearing loss or hearing loss at the time of separation. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even if hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing loss disability by submitting competent evidence that the current disability is causally related to his service. Id at 60. So, in other words, the Veteran need not have satisfied the threshold minimum requirements of § 3.385 while in service - instead, he only needs to satisfy these requirements at present, or at the very least, at some point since filing his claim. According to a May 2013 statement, while the Veteran had not sought treatment for hearing loss, this condition had existed since his separation from active duty. In light of the above, the Veteran's claims file should be returned to the March 2012 audiometric examiner for an addendum (or a similarly qualified physician if this examiner is no longer available). See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner should opine as to whether the Veteran's current bilateral hearing loss manifested during, or as a result of, active military service. The absence of clinical findings of hearing loss at the time of separation from active duty is not in and of itself sufficient evidence that the condition is not related to service. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the March 2012 examiner so that an addendum to the March 2012 examination report can be prepared. A copy of this remand must also be made available to the examiner for review, and the addendum report should reflect review of this material. If the March 2012 examiner is no longer with VA, then his claims file and remand should be provided to an examiner of similar qualifications. A new examination with the Veteran is not required unless deemed necessary by the examiner assigned to prepare the addendum. The examiner is asked to provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hearing loss manifested during, or as a result of, active military service and/or was manifested within one year of the Veteran's April 1970 service discharge. The examiner must provide a complete rationale for all opinions offered, and the examiner must discuss and consider the Veteran's lay assertions regarding the history of his hearing loss, including his May 2013 statement of hearing loss since separation. The Board stresses that the mere absence of audiometric data of hearing loss at the time of separation from service is in and of itself insufficient evidence that this condition did not manifested during, or as a result of, military service. 2. The RO/AMC should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 3. The RO/AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue remains denied, the RO/AMC should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. This case should not be returned to the Board until full consideration has been given to the Veteran's lay statements regarding his symptomatology and history. 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). _________________________________________________ MARJORIE A. AUER 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).