Citation Nr: 1603669 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-13 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a compensable evaluation for perforated tympanic membrane. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). The Veteran requested a Board hearing and one was scheduled for November 2015. The Veteran was notified but failed to report for the hearing. The Veteran has offered no explanation as to why he was unable to appear for the scheduled hearing, and he has since made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal, as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims that his current hearing loss is related to his military service, to include as due to a perforated tympanic membrane. The Veteran was afforded a VA examination in May 2010. The VA examiner found that the Veteran's hearing loss was less likely than not permanently aggravated by his perforated ear drum in service. Later the examiner noted that the hearing loss nexus with the military was far less than 50/50 probability compared to his exposure to hazardous noise in civilian life. Specifically, the examiner noted that hearing protection was not utilized by the Veteran until OSHA regulations were mandated in the 1970's resulting in over 20 years of hazardous noise exposure without ear protection following the Veteran's military service. The examiner also noted that were there was no documented evidence of chronicity or continuity of care following military service. In an October 2010 notice of disagreement, the Veteran said that the examiner was incorrect in his history regarding noise exposure after service. The Veteran explained that he did use GM provided ear plugs to help reduce the level of noise that he was exposed to while working within the high noise areas inside the plant during his time of employment with GM. Again in May 2012, the Veteran explained that he used hearing protection provided by GM long before OSHA mandated the use of ear plugs. The Veteran also noted that he received treatment for his ears from shortly after discharge in 1953 to present. The Veteran continues to maintain that his hearing loss started with his perforated eardrum in service and has progressively gotten worse over the years. The VA examiner's conclusion that the Veteran's hearing loss was less likely related to the Veteran's perforated eardrum is partly based on incorrect information such as hazardous noise exposure after service. The Board finds that an addendum opinion should be obtained that is based on the corrected information. The Veteran has requested an increase in his service-connected history of tympanic membrane perforation. Although the Veteran has been provided a VA Audiology Examination by an audiologist, the Board finds that an examination by an otolaryngologist (ear, nose and throat physician) would be more appropriate. An otolaryngologist could examine the Veteran's ear and tympanic membrane and ask the Veteran specific questions pertaining to symptoms that he may be experiencing that are residuals of a perforated tympanic membrane. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all relevant VA treatment records. 2. After the development requested in item (1) is completed to the extent possible, schedule the Veteran for a VA ear disease examination with an otolaryngologist to assess the current nature, extent, and severity of his service-connected history of tympanic membrane perforation. The entire claims should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. The examiner should specifically review the May 2010 VA audiological examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should specifically address the following: (i) Does the Veteran have symptoms or residuals of his perforated tympanic membrane and if so, what are these symptoms? (ii) The examiner should specifically note whether Meniere's syndrome, loss of auricle, and/or chronic otitis media or any other ear disease is present; and if so, whether such symptomatology is a manifestation of his service-connected tympanic membrane perforation. In providing this opinion, the examiner should accept as true the Veteran's statements to the effect that he reported ear pain in a December 2009 statement. Also during the May 2009 examination, the Veteran reported that he had occasional ear infections and reported that he was referred for an otologic consultation with a private ENT by his employer in 1989. (iii) Is it at least as likely as not that the Veteran's current bilateral hearing loss is related to his service-connected tympanic membrane perforation? (iv) Is it at least as likely as not that the Veteran's current bilateral hearing loss is aggravated (permanently worsened beyond the natural progression) by the service-connected tympanic membrane perforation. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. 3. After item (1) has been completed, return the claims file to the provider who conducted the May 2010 audiology examination, if available, for an addendum addressing the Veteran's claimed hearing loss disability. The examiner should be requested to review the file and her examination report. Upon completion of that review, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran hearing loss is related to the Veteran's military service. Note that the lack of documented treatment or diagnosis of hearing loss in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's military occupational specialty and lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed hearing loss. The examiner's attention is directed to the following statements by the Veteran: In an October 2010 notice of disagreement, the Veteran said that the examiner was incorrect in his history regarding noise exposure after service. The Veteran explained that he did use General Motors (GM) provided ear plugs to help reduce the level of noise that he was exposure to while working within the high noise areas inside the plant during his time of employment with GM. Again in May 2012, the Veteran explained that he used hearing protection provided by GM long before OSHA even mandated the use of ear plugs. The Veteran also noted that he received treatment for his ears from shortly after discharge in 1953 to present. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. An examination should only be provided to the Veteran if the examiner feels that another examination is necessary in order to provide the requested opinion. If the May 2010 VA examiner is not available, another competent professional may provide the opinion after reviewing the May 2010 examination report and the claims file. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 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).