Citation Nr: 1424294 Decision Date: 05/29/14 Archive Date: 06/06/14 DOCKET NO. 12-28 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION The Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1946 to June 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). In January 2013, September 2013, and November 2013, the Board remanded the case to the RO for additional development. While the Veteran's appeal was in remand status, his claim for entitlement to service connection for residuals of a cold weather injury to the bilateral lower extremities was granted in a June 2013 rating decision. In addition, his claim for entitlement to service connection for tinnitus was granted in a September 2013 rating decision. These actions constitute a full grant of the benefit sought on appeal with respect to these two issues, and they are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Board has remanded this matter previously on three separate occasions after it has determined that a medical opinion was needed to obtain an etiology opinion, particularly since the Veteran's service records have not been associated with the file and are fire related. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board requested the first VA examination in May 2013 after it found the Veteran's lay statements reflecting in-service noise exposure from howitzers to be both competent and credible. The Board requested that the VA examiner provide an opinion as to the etiology of the Veteran's current bilateral hearing loss which addressed the competent and credible lay evidence of in-service noise exposure and symptoms since service discharge. The May 2013 VA examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of military service. However, the VA examiner then stated that the exact etiology of the hearing loss could not be determined, and that the hearing loss configuration and acoustic reflex pattern was not consistent with exposure to noise. The Board found this opinion inadequate as it did not provide any explanation or rationale for the conclusion. For example, there was no explanation how the Veteran's hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure. Therefore, the Board remanded the Veteran's claim for a new examination that complied with the Board's directives. A second VA examination occurred in September 2013, but the remand directives were not followed. The examiner merely quoted the first VA examiner stating that the Veteran's hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure. The examiner then stated it was reasonable to assume that the after service occupational noise exposure and that of recreational noise exposure is more likely the major contributor to hearing loss that is present in addition to any age related factors. The Board found this examination inadequate as it and the prior examination provided no further details about the civilian noise exposure, including the nature and extent of the exposure in construction and hunting. There is no information from the Veteran as to the nature and approximate onset of bilateral hearing loss. There is also no discussion regarding the Veteran's lay evidence that he was exposed to gunfire and howitzer without hearing protection. The second VA examination report, like the first, does not explain how the hearing loss configuration and acoustic reflex pattern were not consistent with exposure to noise. Further, the opinion regarding the hearing loss configuration and acoustic reflex pattern seems inconsistent with the other opinion that civilian noise exposure caused the current hearing loss. Finally, even if the Veteran's post- service noise exposure is the major factor in his hearing loss, the examiner does not explain whether the in- service noise exposure could still be a cause, albeit lesser cause, of the hearing loss. Therefore, it remanded this matter again in August 2013, directing a new VA examination that followed the Board's directives providing information and further explanation for the conclusions reached. The Veteran was provided a third VA examination in December 2013, but the examiner has basically provided the same inadequate findings and rationale as the prior examiners. First, the examiner states that the Veteran's majority of hearing loss exposure occurred during basic training to gunfire but there is no evidence in the service records that supports the statement. The examiner then noted the Veteran was a security guard and was likely exposed to some degree of high risk noise in service. There are no service records because they were destroyed in the National Personnel Records Center's (NPRC) 1973 fire at their St. Louis, Missouri facility. The examiner's statement as well as similar statements by the prior examiners, suggest the examiners did not make a careful review of the file. Furthermore, the Veteran's statements concerning his exposure to howitzer fire, if credible, are ultimately competent evidence, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence is potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but the Board retains the discretion to make a credibility determination and otherwise weigh the evidence submitted, including the lay evidence). As noted, the Board found the Veteran has provided competent and credible statements that he was exposed to acoustic trauma during service, including gunfire and howitzer without hearing protection, but no VA examination to date has discussed this evidence. The December 2013 VA examiner also stated that the Veteran had a significant history of post-military noise exposure, i.e., construction and farming for over thirty years. The first VA examination also noted the Veteran had a 35 year history in construction and that the Veteran's recreational hobbies included hunting. None of the VA examination reports provided further details, including the nature and extent of the exposure in construction, farming, and hunting. Also, there is no history in any of the VA examination reporting information from the Veteran as to the nature and approximate onset of bilateral hearing loss. The December 2013 VA examiner also, like prior examiners, states that the Veteran's current audiological configuration is not consistent with hearing loss caused by acoustic trauma. The examiner goes on to state that aging effects in addition to post-military noise exposure are playing a role in the Veteran's hearing loss. The report does not explain how the hearing loss configuration and acoustic reflex pattern were not consistent with exposure to noise. Further, the opinion regarding the hearing loss configuration and acoustic reflex pattern seems inconsistent with the other opinion that civilian noise exposure caused the current hearing loss. Finally, even if the Veteran's post- service noise exposure is the major factor in his hearing loss, the examiner does not explain whether the in- service noise exposure could still be a cause, albeit lesser cause, of the hearing loss. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the RO must arrange for a new VA examination to address the questions raised by the Board. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran a VA examination with an appropriate examiner to determine if the Veteran has a current hearing loss and its etiology. The claims file should be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. Following a review of the claims file and the examination results, the examiner is requested to determine whether the Veteran has a bilateral hearing loss disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, to specifically include the Veteran's competent and credible lay statements of noise exposure to howitzers and gun fire without hearing protection during active duty, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. In the examination, the VA examiner must interview the Veteran in detail as to his service noise exposure, the onset and subsequent history of symptoms, his post-service occupational noise exposure, and his recreational noise exposure When providing an opinion, the examiner must consider the Veteran's statements as credible regarding his exposure to howitzers without hearing protection for several weeks and gun fire. If the Veteran's post- service noise exposure is the major factor in his hearing loss, the examiner should explain whether the in- service noise exposure could still be the originating cause, or a lesser cause of the hearing loss. The examiner must acknowledge the Veteran's records are fire-related and there is no separation examination or other service treatment records available for review. If the examiner determines the current hearing loss configuration and acoustic reflex pattern were not consistent with noise exposure or does not demonstrate a typical pattern for sensorineural hearing loss, the examiner is asked to explain what facts or test results support that conclusion and how such a fact relates to whether the Veteran has a hearing loss related to service. The examiner should also reconcile that finding with any conclusion that the Veteran's hearing loss was related to noise exposure, military or civilian. 2. Thereafter, adjudicate the claim for service connection for bilateral hearing loss. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 Supp. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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).