Citation Nr: 1342364 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 09-36 561 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the RO in Columbia, South Carolina that denied entitlement to service connection for bilateral hearing loss and granted entitlement to service connection for tinnitus. The Veteran appealed the denial of service connection for bilateral hearing loss. The Veteran has both a paper and electronic (Virtual VA and VBMS) claims file. While the instant appeal was pending, the RO was concurrently adjudicating other issues, and associating additional evidence (including extensive VA medical records) with the Veteran's Virtual VA folder and VBMS folder, and apparently also with a temporary folder maintained at the RO. Some of the additional evidence and procedural documents are not in the claims folder that is before the Board, but are found in his electronic Virtual VA folder. 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 Regrettably, the Board finds that additional development is required prior to appellate review. The Veteran contends that he has current bilateral hearing loss due to noise exposure in service. He has consistently reported being exposed to noise from explosions during combat service in Vietnam. In a February 2008 statement, he stated that he first noticed hearing loss during service, and said he could not hear for a long time after an air strike occurred very close to his base camp. In subsequent statements, he said that the concussion from that explosion caused bleeding from his eyes, ears, and nose. In his original claim, he said he had difficulty hearing ever since his service in Vietnam. The Veteran is competent to report observable symptomatology such as hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has also reported post-service recreational noise exposure while hunting, but has denied significant noise exposure in his post-service civilian job in a grocery store for 40 years. The evidence reflects that the Veteran served in Vietnam, that his primary military occupational specialty was light weapons infantry, and that he received the Purple Heart and the Combat Infantryman Badge, among other citations. Thus, the combat injury, exposure to acoustic trauma in service, is presumed. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). To establish service connection, however, there must be evidence of a nexus between the current disability and the combat injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009). Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is such a disease. A VA compensation examination was conducted in May 2008 with respect to this claim. In this VA examination, the examiner opined that it was as likely as not that the Veteran's current tinnitus was related to noise trauma in service, but found that it was less likely as not that his bilateral hearing loss was caused by or the result of military noise trauma during service, based on his normal hearing on his service exit examination. The examiner did not acknowledge that the Veteran was competent to report noise exposure in service or experiencing observable symptoms in service, or discuss the Veteran's lay assertions regarding the continuity of his hearing loss symptoms. Moreover, it appears that the examiner primarily based his negative medical nexus opinion on the normal hearing examination upon separation, which is contrary to the holding of the United States Court of Appeals for Veterans Claims in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). supra. Thus the VA audiology examiner's medical opinion is based on an inadequate rationale. Another VA examination should be conducted, and the examiner is asked to specifically address the Veteran's lay statements regarding in-service and post-service noise exposure and regarding his symptoms of hearing loss. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally, the Board notes that while this appeal has been pending, the RO has been adjudicating other claims and associating additional evidence with the Veteran's electronic Virtual VA file and his electronic VBMS folder. It appears that there may also be a temporary folder at the RO. If so, the contents of the temporary folder should be consolidated with the claims file. While this case is on remand, the RO/AMC should review this additional evidence in the context of the instant appeal. See 38 C.F.R. §§ 19.31(b)(1), 19.37(a) (2013). Pertinent ongoing 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). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any treatment for hearing loss since August 2013, and associate any identified medical records (that are not duplicative) with the claims file, after obtaining any necessary releases. 2. Arrange for a VA audiological and ENT examination of the Veteran, in order to obtain another medical nexus opinion concerning the likelihood that the Veteran's current bilateral hearing loss is related or attributable to his military service from 1965 to 1967 - and, in particular, to his reported noise exposure in his military occupational specialty (MOS) as an infantryman in Vietnam. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. c) After converting the in-service audiograms from ASA to ISO units where appropriate, the examiner must provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's bilateral hearing loss began during active service or is related to any incident of service. d) In providing this opinion, the examiner must be made aware of the Veteran's description of noise exposure before, during, and after service, and must be advised that the Veteran is competent to report observable events and symptoms. e) The examiner must provide commentary regarding the Veteran's reports of in-service noise exposure, and onset of hearing loss during combat service in Vietnam. f) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. g) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal, with consideration of all additional evidence obtained since the July 2009 statement of the case. The contents of any temporary folder should be consolidated with the paper and/or electronic claims file. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. L. Kennedy 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).