Citation Nr: 1512447 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 13-10 615 ) 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 Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). REMAND The Veteran contends he has bilateral hearing loss, which is directly related to exposure to acoustic trauma during active duty. The Veteran's DD214 lists his military occupational specialty as an engine equipment repairman. Moreover, in an August 2011 statement, the Veteran indicated that he worked with diesel engines on a daily basis. The Board finds this consistent with the circumstances of his service and concedes in-service noise exposure. 38 U.S.C.A. § 1154(a) (West 2014). In a September 2011 VA audio examination, the examiner diagnosed bilateral hearing loss and tinnitus. The examiner opined that the Veteran's tinnitus was "at least as likely as not" caused by or a result of military noise exposure. The examiner noted a threshold shift in hearing from enlistment to separation and concluded that while the Veteran's hearing sensitivity was considered normal at separation, the changes in hearing following noise exposure were enough to cause tinnitus. Notably, the RO granted service connection for tinnitus in the March 2013 rating decision. The September 2011 VA examiner also opined that the Veteran's hearing loss was "less likely than not" due to military noise exposure, reasoning that the Veteran's hearing thresholds at separation were within normal limits. The examiner cited medical literature which indicated that "noise induced hearing loss will not progress once noise exposure is stopped." Despite this, the absence of documented hearing loss in service or at separation from service is not fatal to a service connection claim for such disability, and a VA opinion based on the absence of hearing loss shown in service or at separation is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, on remand the Veteran must be afforded an adequate VA audio examination to determine whether any hearing loss is due to his active duty military service and conceded noise exposure. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA provides a veteran an examination in a service connection claim, the examination must be adequate). Additionally, the examiner must also consider whether the Veteran's diagnosed hearing loss is due to or aggravated by any other service-connected disability, to include tinnitus. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA audio examination by an examiner other than the September 2011 VA examiner to determine whether any currently or previously diagnosed bilateral hearing loss is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram by a state-licensed audiologist, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The claims file and all electronic records must be made available to the examiner. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed bilateral hearing loss is related to the Veteran's active duty service. The examiner must also state whether any currently or previously diagnosed bilateral hearing loss is due to or aggravated by any service-connected disorder, to include tinnitus. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of his claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the examination report is deficient in any manner, the RO must implement corrective procedures. 5. Following the completion of the foregoing, and after undertaking any other development the RO deems necessary, the RO must readjudicate the Veteran's claim with consideration of all of the evidence of record. If the decision with respect to the claim remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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 2014). _________________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).