Citation Nr: 1340923 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-23 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to January 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran had a hearing before the Board in July 2013 and the transcript is of record. The case was brought before the Board in August 2013, at which time the Board granted entitlement to service connection for tinnitus and remanded the hearing loss claim for to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. In light of the grant, however, the issue of entitlement to service connection for tinnitus is no longer before the Board here. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran claims he has hearing loss as a result of in-service noise exposure serving as a vehicle operator on a jet line during his time in the Air Force. He specifically indicates being exposed to 140 decibel jet engine noise on a regular basis without hearing protection. The medical evidence in this case is ambiguous. The Board previously remanded the claim to afford the Veteran a new VA examination to resolve the ambiguities. As will be explained below, the Board finds the VA examination obtained inadequate and unresponsive to the Board's prior remand. Thus, a new VA examination is indicated. See Stegall v. West, 11 Vet. App. 268 (1998) (holding the Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). According to the medical evidence and the Veteran's testimony before the Board, he indicates he began noticing hearing loss in the 1970s, years after service. While he noted some post-service occupational noise exposure, he testified he was never exposed to noise comparable to in-service jet engine noise exposure. He further provided an article indicating a jet engine at the time of his service was 140 dB loud and "even short term exposure can cause permanent damage." Private medical records indicate the Veteran filed a Worker's Compensation claim related to his hearing loss. Records from the 1980s to the 1990s were reviewed. While the private providers concluded the Veteran's hearing loss was at least partially attributable to noise exposure, it was not likely noise exposure during his post-service job. Specifically, in November 1998, Dr. Seeton concluded that based on the jobs the Veteran worked after service, "it does not appear that he had significant high noise levels here at Kodak." In April 2012, Dr. Seeton clarified that the Veteran's noise-induced hearing loss is a result of his involvement in the service as well as his other post-service occupations. "At the very least," Dr. Seeton found that the Veteran's military service was at least a significant contributory factor to his current hearing loss. In June 2013 Dr. Seeton opined that "it can take decades" for noise-induced hearing loss to manifest into a measurable hearing loss. The Veteran was afforded VA examinations in July 2011 and October 2013 where the examiners concluded to the contrary, that is unlikely the Veteran's military service caused his current bilateral sensorineural hearing loss. In July 2011, the examiner specifically opined that the Veteran's disability was less likely than not related to service because the Veteran's hearing test results in service were normal and there was no significant threshold shift between entrance and separation. The Board, in the August 2013 remand, found the July 2011 VA examination inadequate because the examiner did not explain the clinical significance that there was no significant threshold shift between entrance into service and separation nor did the examiner address in-service versus post-service noise exposure. The examiner further did not reconcile the private opinions of record. On remand, the Veteran was again afforded a VA examination in October 2013 where the examiner gave virtually the identical opinion. While the examiner did briefly note in-service and post-service noise exposure, the examiner once again opined the Veteran's hearing loss was unlikely related to service because there was no significant threshold shift between entrance and separation. The examiner did not explain the clinical significance of this finding nor did the examiner address the contrary private opinions of record. For example, the examiner further concluded that there is no medical support for delayed onset of hearing loss, but did not reconcile this opinion with Dr. Seeton's contrary June 2013 opinion finding hearing loss can "take decades" to manifest into a measurable hearing loss. The Veteran's service treatment records do include an entrance audiological examination dated February 1961 and a separation audiological examination dated December 1964 with similar results from 500 Hertz to 4000 Hertz. At 6000 Hertz, however, the Veteran's entrance examination indicates auditory thresholds of 10 decibels bilaterally whereas the separation examination indicates an auditory threshold of 45 decibels in the right ear. Whether this is a "significant" threshold shift is unclear and was not addressed by either the 2011 or 2013 VA examiner. For these reasons, the Board finds the medical evidence in this case ambiguous and insufficient to render a decision. A new VA examination is indicated. The RO/AMC must take this opportunity to obtain any outstanding treatment records that may be relevant in this case from October 2013 to the present. 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) (2013). Expedited handling is requested.) 1. Ask the Veteran to provide names and addresses of all medical care providers who treated him for his bilateral hearing loss since October 2013. After securing the necessary release, obtain those records. Also obtain the Veteran's medical records for any identified treatment at a VA Medical Center. All efforts to obtain records must be fully documented for any requested records that are not obtained and VA facilities must provide a negative response if no records are available. 2. When all indicated record development has been completed, afford the Veteran a new audiological examination to determine the nature and etiology of any hearing loss found. Any indicated tests should be performed and the claims folders and any pertinent evidence in Virtual VA (to include the Board hearing transcript) that is not contained in the claims folders must be provided to and reviewed by the examiner. Following examination, the examiner must state an opinion whether it is at least as likely as not (50 percent probability or greater) that any hearing loss is attributable to in-service noise exposure, injury, or in-service duties as a Vehicle Operator in the Air Force regularly exposed to jet engines. The examiner is to be informed that in-service noise exposure is conceded. The examiner is specifically directed to consider the service treatment records, to include the auditory threshold shift from 10 decibels to 45 decibels at 6000 Hertz in the right ear from enlistment to separation examinations, the Veteran and his wife's description of symptoms in-service and thereafter, the Veteran's description of in-service noise exposure, his occupational noise exposure, private medical opinions of record, and VA examinations. The examiner must provide a complete rationale for any opinion expressed. The examiner is to reconcile any opinion expressed with the other medical evidence; the examiner is asked to specifically discuss the Veteran's evidence that exposure to jet engines reaches 140 dB and exposure to such levels, even for a short duration, can cause hearing loss damage; and the examiner is asked to specifically discuss the Veteran's post-service noise exposure from his civilian occupations and from recreational activities such as hunting. If an opinion cannot be made without resort to speculation, the examiner is to provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Then, readjudicate the Veteran's issue remaining on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case (SSOC) and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action 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 2002 & Supp. 2013). _________________________________________________ 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) (2013).