Citation Nr: 1600471 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 13-25 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1971 and from February 1973 to June 1988. The Veteran had service in the Republic of Vietnam from March 1968 to March 1969. This case comes before the Board of Veterans' Appeals (the Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The Board remanded the Veteran's claims in February 2014 and May 2015 for further development. Unfortunately, that development was not properly completed and another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its February 2014 remand, the Board instructed the AOJ to request that the Veteran identify and authorize the release of records pertaining to his hearing loss disability from any private treatment provider, and schedule the Veteran for a VA audiological examination in order to obtain an etiological opinion. In rendering the requested opinion, the examiner was specifically instructed to note the Veteran's reported history of in-service noise exposure while serving in the Republic of Vietnam, and discuss the results of the September 1966 entrance examination audiogram and the July 1971 separation examination audiogram and state whether a comparison of the audiometric results indicated a significant puretone threshold shift. In March 2014, the AOJ sent the Veteran a letter requesting he identify and authorize the release of any such records, and the Veteran was afforded a VA audiological examination in April 2014. Upon review of the record, the Board determined that the April 2014 VA examination was inadequate, as the examiner reported that the Veteran's hearing tests were within normal limits at all times during service, despite audiograms dated in July 1971, April 1976, October 1980, and April 1988 which showed puretone thresholds higher than 20 decibels and thus indicating some evidence of impaired hearing. Consequently the Board remanded the Veteran's claim in May 2015. The Board once again instructed the AOJ to request that the Veteran identify and authorize the release of records pertaining to his hearing loss disability from any private treatment provider. Additionally, the Board noted that various VA medical records referred to VA audiological test results from 2011, and instructed the AOJ to obtain any such records dated in 2011. The Board further instructed the AOJ that if no such tests existed or were available, that such fact should be documented, and that the Veteran should be notified of any records that could not be obtained, the efforts made to obtain those records, and of further actions that would be taken with regard to the claims. The Board further instructed the AOJ to schedule the Veteran for a new VA examination, and requested that the examiner address the significance of puretone thresholds above 20 decibels during service in the years of 1971, 1976, 1980, and 1988, as compared to thresholds of 20 decibels or below measured in 1969 and 1987, as well as the discrepancy between the hearing results in the February 2012 QTC audiological examination and April 2014 VA audiological examination. In July 2015, the AOJ requested that the Veteran identify and authorize the release of any relevant private treatment records, and obtained VA medical records dated from October 2002 to July 2015 and associated them with the claims file. However, the associated records did not contain audiological records from 2011. Moreover, the AOJ neglected to document whether such records did not exist or were not available, nor was the Veteran informed of the unavailability of these records. Thus, the AOJ failed to substantially comply with the remand directives in this regard. Further, the Board notes the August 2015 VA examination report contains several inconsistencies. Preliminarily, the August 2015 VA examiner reported that the Veteran's enlistment examination occurred in 1967; however, the Veteran's service treatment records (STRs) show it occurred in September 1966. Additionally, the examiner stated that the enlistment examination report showed the Veteran had normal hearing in the right ear prior to service. The Board notes that service department audiometer test results prior to October 31, 1967, are assumed to have been reported in American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. Although the August 2015 VA examiner stated she converted the enlistment examination results to ISO, the threshold for 500 Hertz becomes 25 decibels when converted, suggesting some hearing impairment in the right ear. With respect to claims for service connection for hearing loss, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the Veteran's entrance examination report suggests he had some level of hearing impairment in the right ear at 500 Hertz, and the examiner's statement that the Veteran's hearing in the right ear prior to his enlistment was "normal" is factually inaccurate. Given these facts, a determination must be made as to whether the Veteran had some hearing loss prior to service, if so, whether that hearing loss was aggravated by service. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). "Clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). With respect to the Veteran's left ear, the examiner noted the Veteran's April 1976 audiogram showing 30 decibels at 500 Hertz, but stated that shifts in thresholds of less than 15 decibels are considered to be within the range of usual measurement variability. From this, the examiner concluded that the Veteran had normal hearing in the left ear according to the April 1976 audiogram. However, the examiner provided no support for the conclusion that threshold shifts of less than 15 decibels were in the range of usual measurement variability; thus, it is unclear whether that range of variability is the examiner's individual opinion or is a general medical principle. The Board also observes that when addressing the discrepancies between the February 2012 and April 2014 VA examinations, the examiner stated that the difference of 10 decibels in hearing thresholds at 4000 Hertz was considered to be within the range of usual measurement variability, and that the difference in word recognition of 4 percent (2 words) was considered to be within the range of test-retest variability. However, this opinion is conclusory and equivocal, as the results of the February 2012 QTC examination could be the most accurate of the three examinations. The Board hastens to add that the February 2012 examiner opined that although the Veteran's puretone average did not indicate hearing loss in the left ear, the speech discrimination score of 92 percent in the left ear met the VA criteria for hearing loss. See February 2012 QTC Examination, pg. 9; see also 38 C.F.R. § 3.385 (2015). Lastly, the Board notes that because the August 2015 VA examiner did not sufficiently explain why the scope of audiometric results in the Veteran's in-service audiograms was within the range of usual measurement variability, the opinions finding that the Veteran's hearing tests were within normal limits at all times during service are inadequate. In this regard, the Board stresses that the absence of in-service evidence of a hearing disability 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 disability and a medically sound basis for attributing that disability to service may provide 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, the August 2015 VA examination report is inadequate for rating purposes. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran clarify whether he has received any private treatment for his claimed hearing loss disability, to include treatment in 2011. If so, ask the Veteran to identify the provider of any audiological testing or treatment and complete a release for VA to obtain any non-VA records. Alternatively, inform the Veteran that he may provide the records to VA himself. 2. Obtain records of any outstanding VA audiological test results, including results from 2011. If no tests from 2011 exist or are available, this finding should be documented. The Veteran should be notified of any requested records that cannot be obtained, the efforts made to obtain those records, and of further actions that will be taken with regard to the claims. 3. Forward the claims file to the author of the August 2015 VA examination report, or an appropriate substitute as necessary. If the examiner determines that the Veteran should be provided another VA examination, one should be scheduled. The examiner should review the entire claims file, to include this remand, and respond to the following: a) Does the Veteran have a current hearing loss disability for VA purposes in either ear? The examiner should address the discrepancy between the hearing results in the February 2012, April 2014, and August 2015 examinations, and any results from 2011 that are obtained upon remand. b) Whether there is clear and unmistakable evidence that the Veteran's hearing loss of the right ear preexisted service. Note that "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. c) If so, whether there is clear and unmistakable evidence that the Veteran's preexisting right ear hearing loss was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). d) If there is not clear and unmistakable evidence that the Veteran's right ear hearing loss preexisted service and was not aggravated by service, whether it is at least as likely as not (a probability of 50 percent or greater) that any current right ear hearing loss disability had its onset during the Veteran's military service through April 1988, or was incurred as a result of service, to include noise exposure in the Republic of Vietnam. e) Whether it is at least as likely as not (a probability of 50 percent or greater) that any current left ear hearing loss disability had its onset during the Veteran's military service through April 1988, or was incurred as a result of service, to include noise exposure in the Republic of Vietnam. In providing the requested opinions, the examiner should address the significance of the puretone thresholds above 20 decibels during in-service evaluations in 1971, 1976, 1980, and 1988, as compared to thresholds at 20 decibels or below in 1969 and 1987. Note that the Court has found that thresholds above 20 Hz indicate "some degree of loss" and therefore must be addressed as to whether they represent disability. Additionally, the examiner is asked to explain the underlying reasons for the prior conclusion that a shift of less than 15 degrees is normal. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The rationale for any opinion rendered must be provided. If the examiner is unable to offer any opinion without speculation, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). With respect to the above requested opinions, the examiner is advised that the absence of in-service evidence of a hearing disability 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 disability and a medically sound basis for attributing that disability to service may provide 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ BETHANY L. BUCK 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) (2015).