Citation Nr: 1341279 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-29 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for right ear hearing loss, but awarded service connection for left ear hearing loss and assigned a noncompensable evaluation for that disability, effective October 30, 2009-the date on which the Veteran filed his claim for service connection. The Veteran timely appealed the above issues. The Veteran indicated that he wished to appear at a Board hearing before a Veterans Law Judge in his substantive appeal, VA Form 9; however, he withdrew that request for a hearing in an October 2011 correspondence. The Board will proceed to adjudicate the Veteran's claim at this time without the benefit of a hearing, in accordance with the Veteran's wishes. 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 In this case, the Board notes initially that in the Veteran's representative's November 2013 informal hearing presentation, it was noted that the Veteran contended that his left ear hearing loss was worse. Accordingly, the Board finds that a remand of that issue is necessary at this time in order to afford the Veteran a VA examination that adequately reflects the current nature and severity of his left ear hearing loss. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). In light of that remand, the Board notes that the right ear hearing loss claim is inextricably intertwined with that claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, regardless of that claim being intertwined, the Board finds that the opinions of record are inadequate regarding the Veteran's right ear hearing loss. Specifically, the most recent VA audiological examination report in September 2012 noted that the examiner did not have the claims file; she stated that "[o]nce the claimed folder is received and reviewed, an opinion will be rendered." The claims file apparently was never provided the examiner and there is no addendum opinion of record; thus, development noted as necessary by the examiner was never completed in this case. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The RO/AMC should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Notwithstanding that fact, the other medical opinion from the December 2009 examiner does not mention that the Veteran had a 25 decibel loss at 4000 Hertz (Hz) on enlistment, which has been noted as hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Nor does that examiner address whether the Veteran's right ear hearing loss is due to or aggravated by his left ear hearing loss disability. Therefore, on remand, the Board finds that another medical opinion be obtained which adequately addresses the Board's noted concerns above. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Dallas VA Medical Center, or any other VA medical facility that may have treated the Veteran, since October 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should conduct an audiological examination and report the puretone thresholds and the Maryland CNC speech discrimination scores obtained. The examiner should additionally address the Veteran's complaints with respect to the functional loss and interference with his activities of daily living caused by his hearing loss. After audiological examination, the examiner should discuss the following: (a) Whether the Veteran's right ear hearing loss is more likely, less likely, or at least as likely as not (50 percent or greater probability) is caused by or otherwise related to military service, to include exposure to noise therein. (b) Whether the Veteran's right ear hearing loss is more likely, less likely, or at least as likely as not caused by or the result of his left ear hearing loss. (c) Whether the Veteran's right ear hearing loss was aggravated (e.g., permanently worsened beyond the normal progression of that disease) by his left ear hearing loss. The Veteran should take as conclusive fact that the Veteran was exposed to heavy vehicle and artillery noise during his military service, as per the Veteran's historical account. The examiner should specifically discuss the audiological findings throughout the service treatment records, including the 25 decibel loss at 4000 Hz in his right ear noted on his induction examination as well as the apparent improvement of audiological thresholds in his right ear on his separation examination. The examiner should also address the Veteran's lay evidence with regards to symptomatology during service and continuity of symptomatology after discharge from service. All opinions must be accompanied by a rationale. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for right ear hearing loss and increased evaluation for left ear hearing loss. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 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). _________________________________________________ J. A. MARKEY 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).