Citation Nr: 1342854 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 11-02 769 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active military service from January 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In December 2011, the Veteran provided testimony at a videoconference hearing, before the undersigned Veterans Law Judge, the transcript of which is of record. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Board concludes that the July 2010 VA examination is not adequate for the purpose of adjudicating the Veteran's claim. In July 2010, the Veteran underwent a VA audiological examination and audiometric testing revealed hearing loss disability for VA purposes under the requirements of 38 C.F.R. § 3.385 (2013). The July 2010 VA examiner provided an opinion that the Veteran's bilateral hearing loss was less likely as not caused by or a result of noise exposure associated with artillery duties. The July 2010 VA examiner did not explicitly provide a rationale for his opinion as to the lack of nexus between the Veteran's noise exposure in service and the Veteran's current bilateral hearing loss. However, he appeared to rely on the Veteran's service treatment records because he noted the Veteran's separation audio had been within normal limits, bilaterally, and that no significant threshold shift was noted in puretones as compared between entrance and separation. However, a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, most of the probative value of a medical opinion comes from its reasoning, which the VA examiner did not provide in this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the Board notes that the absence of in-service evidence of some degree of hearing loss (per Hensley v. Brown, 5 Vet. App. 155 (1993)), or a hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385), 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 (as opposed to intercurrent causes). See Hensley, 5 Vet. App. 155 at 159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining whether the Veteran's hearing loss is etiologically related to service. Also, updated VA treatment records should be obtained and associated with the claims file. A September 2013 rating decision references review of Las Vegas VA Medical Center (VAMC) treatment records, from June 2010 to July 2010. Thus, on remand, all relevant VA treatment records should be obtained, specifically from VA Southern Nevada Healthcare System and any associated outpatient clinics, since June 2010, and associated with the claims file. See 38 U.S.C.A. § 5103A(c) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records, VA Southern Nevada Healthcare System and any associated outpatient clinics, since June 2010, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Return the claims file to the July 2010 VA audiology examiner, or suitable substitute. The examiner must review the claims file, to include a copy of this remand, and provide an opinion as to whether the Veteran's current bilateral hearing loss is at least as likely as not (50 percent probability or greater) etiologically related to in-service noise exposure. The examiner is advised that the lack of documentation of hearing loss in service treatment records, absence of a significant shift in auditory thresholds between enlistment and separation, or a normal separation examination is not a sufficient rationale for a negative opinion. Service connection may be established for hearing loss disability initially demonstrated years after service if it may be reasonably related to acoustic trauma in service. The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles. The term "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. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).