Citation Nr: 1326489 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 12-26 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. 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 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). A remand is necessary in this case so VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim of entitlement to service connection for bilateral hearing loss. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2012). The Board concludes that the November 2011 VA examination is not adequate for the purpose of adjudicating the Veteran's claim. In November 2011, the Veteran underwent a VA audiological examination and audiometric testing revealed speech recognition scores were reflective of hearing loss disability for VA purposes under the requirements of 38 C.F.R. § 3.385 (2012). The examiner provided an opinion that the Veteran's bilateral hearing loss was not caused by or a result of service. The examiner relied on the absence of any significant shift in hearing during service as the primary rationale for the opinion. 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 v. Brown, 5 Vet. App. 155, 159 (1993). The November 2011 VA examiner did not attribute the Veteran's bilateral hearing loss to any specific cause, but notably, the VA examiner did find a nexus between the Veteran's tinnitus and in-service noise exposure. 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 the nature and etiology of the Veteran's hearing loss. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the November 2011 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 requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles. 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. 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. 2. 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 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 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).