Citation Nr: 1340201 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-29 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing disability. 2. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the lumbar spine. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1977 to August 1977, and March 1979 to December 1983. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in in Waco, Texas, which, in part, denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability and continued the 10 percent disability evaluation for degenerative joint disease of the lumbar spine. On his VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing before a Veterans Law Judge. However, in November 2012, the Veteran withdraw his request for a Board hearing. See 38 C.F.R. § 20.704 (e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. 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 Board finds that additional development is warranted in this case before a decision may be rendered. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran essentially contends that he has a bilateral hearing loss disability related to service. He asserts that he was exposed to acoustic trauma during service working as a truck vehicle recovery operator. The Veteran was afforded a VA examination in November 2011. In noting diagnoses of bilateral sensorineural hearing loss, the examiner indicated that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. She noted that review of the claims folder showed hearing tests dated in April 1977, July 1977, and December 1980, which all showed hearing within normal limits, with the exception of mild hearing loss at 6000 hertz in the left ear in December 1980. The examiner observed that there were no hearing tests after 1980 and she was unable to determine if a change in hearing occurred during the last three years of service. She also reported the Veteran's history of noise exposure to include six years during service with use of hearing protection, 10 years of factory work prior to service without hearing protection, and seven years of lawn equipment use without hearing protection. Based on the current record, the Board finds that there is insufficient evidence to make a determination in this case. In particular, the Board finds that the VA examination report is not adequate as the examiner indicated that she could not provide an opinion without resorting to speculation. She placed great weight on the lack of documentation related to hearing loss during service. In this regard, it is noted that the Veteran is competent and credible as to any assertions with regard to acoustic trauma during service, especially because his DD Form 214 confirms his occupation in Improved Tow Vehicle/Infantry Fighting Vehicle/Cavalry Fighting Vehicle Systems Mechanic during service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also observes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. As noted herein, the law does not necessarily require that hearing loss manifest in service. It would have been helpful if the examiner had brought her expertise to bear in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure or acoustic trauma in service as opposed to some other cause. Based on the foregoing, the Board finds that this matter should be remanded and the Veteran should be provided another audiological examination to determine whether in-service noise exposure could cause the Veteran to progressively lose his hearing over the years. Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, the examiner must address the etiology of any hearing loss noted during the period on appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). As to the lumbar spine disability, the Veteran was last evaluated in May 2011. The duty to assist does not require that a claim be remanded solely because of the passage of time if an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, the Veteran's symptoms appear to have worsened. Notably, during the May 2011 examination, the Veteran denied any incapacitating episodes but on his October 2012 VA Form 9, he indicated having incapacitating episodes. Furthermore, in its April 2013 VA Form 646, the Veteran's representative stated that the Veteran's spine disability had worsened and was impacting his quality of life. Therefore, a contemporaneous examination of the Veteran's current lumbar spine disability is necessary to accurately assess his disability picture. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Additionally, as this matter is being returned for additional development, all ongoing and outstanding VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. All efforts to obtain additional evidence must be documented in the claims folder. 2. Schedule the Veteran for an audiological examination to determine the nature and etiology of any current hearing loss disability. The examiner must review the claims file, to include a copy of this remand, and must indicate that review of the claims folder was completed. The examiner must provide an opinion whether it is at least as likely as not (50 percent probability or greater) that any hearing loss disability is etiologically related to conceded in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years). The examiner should address the mild hearing loss in the left ear at 6000 hertz noted in December 1980. The examiner must provide a rationale for the opinions expressed and reconcile any contradictory evidence of record. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. In rendering the above opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 3. Schedule the Veteran for an examination in order to determine the current level of severity of his degenerative joint disease of the lumbar spine. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All indicated studies, including range of motion studies in degrees using a goniometer, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific degrees at which pain begins. To the extent possible, the examiner should assess the degree of severity of any pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should indicate whether the Veteran's lumbar spine disorder is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on whether there is any neurological abnormalities associated with the lumbar spine disorder, to include but not limited to radiculopathy, or bladder or bowel impairment. The examiner should also address the impact of the Veteran's lumbar spine disorder on his daily activities and employment. The supporting rationale for all opinions expressed must be provided. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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 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). _________________________________________________ BETHANY L. BUCK 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).