Citation Nr: 1511313 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 10-06 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from December 1959 to April 1963. This matter is before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2012, the Board remanded the claim to afford the Veteran a hearing. In August 2012, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In May 2013 and again in May 2014, the Board remanded the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board's May 2013 remand instructed that a medical opinion be obtained after examination. In May 2014, the Board noted that the September 2013 VA opinion indicated that the Veteran's current bilateral hearing loss was not likely related to service because the Veteran did not report hearing loss at separation from service and the separation examination report indicated normal hearing by the whispered voice test. However, even when the regulatory requirements for a disability are not shown at separation, service connection may still be established through probative evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); 38 C.F.R. § 3.303(d) (2014). The Board therefore instructed in the May 2014 remand that an addendum be obtained from the audiologist who performed the September 2013 VA examination. The Board also instructed that the audiologist should accept as true the Veteran's statements to the effect that he experienced in-service noise exposure during his tour of duty aboard the U.S.S. Forrestal and, later, while based at the Naval Air Stations in Sanford and Pensacola, and that the audiologist should also accept as true the Veteran's account of seeking treatment for hearing loss within eight years of his Navy discharge. The Board also noted that it was imperative that the audiologist reconcile all pertinent evidence of record, including the Veteran's own written statements and testimony and the clinical records showing treatment for 1) an acoustic neuroma and post-operative residuals; 2) complaints of tinnitus, vertigo, and dizziness; and 3) a diagnosis of bilateral sensorineural hearing loss that is moderate in the right ear and profound in the left. In the June 2014 addendum opinion, the audiologist again focused on the absence of complaints of hearing loss in the STRs, the normal whispered voice tests at separation, and the fact that the Veteran did not attribute his hearing loss to service. She did not address the evidence cited by the Board and appeared to base her opinion on the absence of hearing loss in the clinical records from the time of service as well as a lack of acceptance of the Veteran's statements that he sought treatment for hearing loss within eight years of his Navy discharge. Therefore, in order to ensure compliance with the Board's prior remand orders, another VA opinion is warranted, by a different audiologist or other appropriate health care professional. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board regrets the additional delay in resolution of the Veteran's claim. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran's claims file to an audiologist or other appropriate health care professional other than the audiologist who conducted the September 2013 VA examination and provided the June 2014 addendum opinion (i.e., other than VA audiologist "J.M.M."). The entire claims file, including the Veteran's VBMS eFolder and any relevant medical records in the Veteran's Virtual VA eFolder, should be made available to and be reviewed by the health care professional. The health care professional should address the following question: Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed bilateral hearing loss is related to an incident of military service, including in-service acoustic trauma? For purposes of this remand, the health care professional should accept as true the Veteran's statements to the effect that he experienced in-service noise exposure during his tour of duty aboard the U.S.S. Forrestal and, later, while based at the Naval Air Stations in Sanford and Pensacola. The health care professional should also accept as true the Veteran's account of seeking treatment for hearing loss within eight years of his Navy discharge. It is imperative that the health care professional reconcile all pertinent evidence of record, including the Veteran's own written statements and testimony and the clinical records showing treatment for 1) an acoustic neuroma and post-operative residuals; 2) complaints of tinnitus, vertigo, and dizziness; and 3) a diagnosis of bilateral sensorineural hearing loss that is moderate in the right ear and profound in the left. The addendum opinion should be associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the health care professional cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the opinion cannot be made without additional examination of the Veteran, such an examination should be provided. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claim for entitlement to service connection for bilateral hearing loss disability. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).