Citation Nr: 1602428 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 13-14 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from November 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Virtual VA only contains documents irrelevant to the claim on appeal or duplicative of the documents in VBMS. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that an additional medical opinion is needed in this case. The Veteran was afforded a VA examination in January 2011. During the VA examination, the Veteran reported that he used forced air from a hose to clear water from batteries as part of his duties during service on a submarine. He related that, on one occasion, the force of the pressure from the hose caused a high pitched sound to be emitted from the hose and it was difficult for him to hear out of his left ear. In the VA examination report, the examiner opined that it was less likely as not that the Veteran's hearing loss was caused by or the result of military noise exposure. The examiner noted that an audiogram conducted during the Veteran's August 1965 enlistment examination indicated hearing within normal limits. The examiner also indicated that, in a June 1967 service treatment note, the Veteran complained of difficulty hearing and a pinging sound in his left ear; however, it was noted that the Veteran had no difficulty with his tympanic membranes, which were described as normal. In addition, the examiner reported that a September 1969 separation examination showed hearing within normal limits. The examiner stated, "It is highly improbable that this hearing loss would result from the incident described. Over forty years ha[ve] elapsed since the Veteran exited military service, with time for presbycusis to impact hearing as well." It appears that the VA examiner based the opinion on the lack of medical evidence of hearing loss in service. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the examiner did not consider that the Veteran has provided competent testimony that he noticed diminished hearing during service and that it has existed, but worsened, since that time. Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any hearing loss that may be present. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the electronic claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After completing the foregoing development, refer the Veteran's claims file to the January 2011 VA examiner or, if unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any bilateral hearing loss that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. If an examination is deemed warranted, one must be provided. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as 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. The Veteran has contended that he had noise exposure in service and that he noticed difficulty hearing during service and since that time. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran currently has bilateral hearing loss that manifested in service or that is otherwise causally or etiologically related to his military service, including noise exposure. In rendering this opinion, the examiner must discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develop in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the 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 (2015). In the event that the Veteran does not report for any 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. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ K. MILLIKAN 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).