Citation Nr: 1343211 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-14 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss, right ear. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to an initial compensable disability rating for hearing loss, left ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the Veteran's physical claims file and Virtual VA electronic claims file to ensure a total review of the evidence. 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 The Veteran seeks service connection for hearing loss in his right ear which he attributes to noise exposure experienced during active service. The Veteran was afforded a VA audiological examination in June 2010, but the examiner opined that the hearing loss in the right ear was less likely than not related to his service. In providing this negative medical opinion, the examiner appeared to rely largely on the absence of hearing loss in the right ear at time of separation. Even if disabling hearing loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Furthermore, the lack of any evidence showing the Veteran had hearing loss in his right ear during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, an opinion is required to determine whether the Veteran's current hearing loss in his right ear is related to in-service noise exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the claim for increased rating for left ear hearing loss is inextricably intertwined with his service connection claim for hearing loss in the right ear. Harris v. Derwinski, 1 Vet.App. 180 (1991). Thus, a decision on the Veteran's claim for a compensable rating for hearing loss in the left ear will be deferred pending adjudication and development of his service connection claim for hearing loss in the right ear. Further development is needed for the Veteran's service connection claim for a low back disorder. The medical evidence establishes that the Veteran has a current disability of the low back, and the circumstances of his service (specifically his receipt of the Combat Action Ribbon) establish service incurrence. Further, his lay statements establish that he has experienced back pain since then. VA is required to provide an examination to determine the likely etiology of his claimed low back disability. McLendon v. Nicholson, 20 Vet. App. 79 ( 2006). Since the claims file is being returned it should be updated to include VA treatment records compiled since April 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1 Contact the Veteran and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his hearing loss in the right ear and low back condition since service. After obtaining the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. 2 Return the Veteran's claims file to the examiner who conducted the Veteran's VA audiological examination in June 2010, or to a qualified medical professional if the examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The entire claims file and all pertinent records must be reviewed by the examiner. After reviewing the record, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater), that any current hearing loss in the right ear is etiologically related to the Veteran's active military service, to include any in-service noise exposure. The audiologist is advised that the Board has found that the Veteran was exposed to loud noise in service, and the absence of separation audiometric findings should not preclude an opinion. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3 Schedule the Veteran for a VA orthopedic evaluation to determine the nature and likely etiology of his low back disorder. The claims file must be made available to the examiner for review. The examiner should conduct a thorough examination and identify any pathology found. For any diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the condition is etiologically related to the Veteran's active service, specifically addressing the Veteran's reported in-service back injury, discussed above. A complete rationale is requested for any opinion provided. 4 Upon completion of the above, readjudicate the claims on appeal for service connection for hearing loss in the right ear and a low back disorder, followed by the claim of entitlement to an initial compensable disability rating for hearing loss in the left ear. If any benefits remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. 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 2002). _________________________________________________ M. E. LARKIN 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).