Citation Nr: 1415203 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 11-17 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2013, the Board remanded the appeal for further development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Regrettably, a remand is required in this case. In the November 2013 remand, the Board requested that the Veteran be scheduled for a VA audiology examination. The Veteran was examined in December 2013 and an addendum was obtained in January 2014. The Veteran asserts that he has bilateral hearing loss as a result of occupational noise exposure sustained while on active duty. The Board has conceded acoustic trauma during service, and the RO has granted service connection for tinnitus based on acoustic trauma during service. In addition, in the November 2013 decision, the Board granted service connection for a right ear hearing loss disability. The Veteran's service medical records show an in-service diagnosis of hearing loss in February 1969. In addition, while there is no indication that the Veteran was provided an audiogram at the time of his separation examination in March 1969, the Veteran has reported that he first experienced hearing loss in active service and has continued to experience hearing loss since his separation from active service. The Veteran is competent to report when his symptoms of hearing loss began and that they have continued since his active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in that assertion. In addition, the Veteran's service medical records contain an undated Maico Audiogram, which appears to show raw data that appears to reveal positive findings. At the December 2013 audiology examination, the examiner performed an audiogram but stated that an opinion could not be given on whether the Veteran's left ear hearing loss had a nexus to his military service without resort to mere speculation. After review of the Veteran's claims file, the examiner noted that the lack of evidence at the time of separation was the reason an opinion could not be rendered. Unfortunately, that opinion is not adequate for rating purposes. Examinations are not adequate where the examiner does not comment on the Veteran's report of relevant injury in service and, instead, relies on the absence of evidence in service medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran should be provided a VA examination to determine the nature and etiology of any left ear hearing loss disability. Additionally, the remand directives indicated that the examiner should interpret the data on the undated Maico Audiogram, and state whether or not that audiogram indicated left ear hearing loss. There is no evidence that the examiner reviewed the Maico Audiogram, and there is no discussion of it in the examination report. Thus the examiner should be asked to provide the above information, in compliance with the November 2013 remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file. 2. Then, schedule the Veteran for a VA audiology examination. The examiner must review the claims file and should not that review in the report. The examiner should also take into account the Veteran's medical, occupational, and recreational history during and since service, and his claim of continuing symptoms of hearing loss since service. A complete rationale for all opinions expressed should be provided. The examination must include testing of pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition scores using the Maryland CNC Test. All indicated studies should be conducted, and all findings reported in detail. The examiner should provide the following information: (a) The examiner should interpret the data on the undated in-service Maico Audiogram found in the Veteran's service medical records file and should state whether or not that audiogram indicates left ear hearing loss during service. (b) Taking the interpretation of the undated in-service Maico Audiogram data into consideration, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left ear hearing loss is related to exposure to acoustic trauma during service. (c) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any current left ear hearing loss is due to or the result of the service-connected tinnitus or right ear hearing loss. (d) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any current left hearing loss is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected tinnitus or right ear hearing loss. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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) (2012).