Citation Nr: 1339229 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 07-02 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to September 1991. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The issue on appeal was previously before the Board in May 2013 and July 2013. It was remanded both times for additional evidentiary development. 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded the issue on appeal in order to have the Veteran undergo a VA examination to determine the nature, extent and etiology of his hearing loss. VA examinations were conducted in May 2013 and August 2013 in an attempt to comply with the Board's remand instructions. Unfortunately the Board finds reason to remand the issue on appeal again. The examiners who conducted the May and August 2013 examinations both determined that they could not provide an opinion as to the etiology of the Veteran's hearing loss as the audiological testing they conducted was interpreted as being not valid for rating purposes. Both examiners determined that there was poor inter-test reliability. Given the finding that the testing conducted in May and August was unreliable, the examiners did not provide etiology opinions. Significantly, the Board notes that the report of a September 2012 VA audiological examination demonstrates that audiological testing conducted at that time was determined to be valid. This testing revealed hearing loss for VA purposes. The Board had previously determined that the etiology opinion from the September 2012 VA examination was insufficient. This does not change the fact that the audiological testing was determined to be valid. Based on the above, the Board finds that another etiology opinion should be obtained for the claimed hearing loss. If audiological testing is again determined to be unreliable, then the examiner should be directed to provide an etiology opinion based on the audiological testing conducted in September 2012. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Forward the Veteran's claims file to the August 2013 VA examiner, or to a different VA audiologist if the August 2013 VA examiner is not available. The VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to service, to include his routine exposure to hazardous noise while serving in the motor pool. The Veteran's exposure to acoustic trauma while working as a mechanic during active duty is conceded. In rendering an opinion, the examiner must note that applicable law provides that service connection may be granted for a disability initially demonstrated after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. If audiological re-testing is determined to be invalid, the examiner must provide an etiology opinion based on the results of the September 2012 VA audiological examination which was determined to be valid. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. In rendering the requested opinion and rationale, the examiner must note that the fact that the Veteran's in-service examinations were within normal limits is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. The Veteran's self-reported history of hearing loss must be taken into account. It would be helpful if the examiner would use the following language, as may be appropriate: "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 a 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. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for bilateral hearing loss. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant and his representative have 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). _________________________________________________ L. M. BARNARD Acting 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).