Citation Nr: 1608842 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 13-10 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In December 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current bilateral hearing loss disability is due to hazardous noise exposure in service, specifically exposure to firearms and airplane engines without ear protection. Because the evidence of record is inadequate to resolve the claim, a remand is required to obtain another VA examination. The Veteran's service treatment records reveal no complaints of or treatment for hearing loss. At separation, audiological testing demonstrated normal hearing. In August 2012, he underwent a VA examination during which he reported being exposed to hazardous noise in service. In addition, he reported post-service noise exposure while working in a lab. Audiological testing revealed bilateral sensorineural hearing loss constituting a disability for VA purposes. See 38 C.F.R. § 3.385 (2015). Based on the normal enlistment and separation audiograms, the examiner opined that it was not at least as likely as not that the Veteran's hearing loss was related to service; however, a detailed rationale was not provided. In February 2013, during a VA audiology consult, the Veteran reported experiencing hearing loss for the past 8 to ten years. At his Board hearing, he testified that he first noticed hearing problems in the mid-1990s, several decades after separation from service. Nevertheless, he expressed the belief that his hearing loss was due to in-service noise exposure. In January 2016, the Veteran submitted an opinion from a private audiologist. This report documents (in contrast to his hearing testimony) that the Veteran complained of hearing loss and "constant bilateral tinnitus" since service. The audiologist opined that the Veteran's hearing loss was "highly consistent with noise damage," citing the fact that hearing loss was more pronounced in his left ear, which was "commonly seen among right-handed veterans where the barrel of a rifle is closer to the left ear at discharge." The examiner further noted that the Veteran had "no history of noise exposure outside of his military service," and concluded that his separation audiogram was unreliable because "all thresholds are 0 dB, a circumstance which simply does not occur in real life." Thus, the examiner found that the "most compelling" explanation for the Veteran's current hearing loss disability was in-service noise exposure. Upon review, the Board finds that neither of the above medical opinions are adequate to support an adjudication on the merits. The VA examiner's opinion is inadequate because it does not provide a rationale as to why the normal findings at separation preclude service connection, and because it does not comment on whether hearing loss developed within one year of separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In addition, the VA examiner noted that the Veteran had post-service noise exposure but provided no explanation as to whether this contributed to his hearing loss. The January 2016 private opinion provides a more detailed discussion of the etiology of the Veteran's hearing loss, but it is likewise inadequate, as it appears to jump to conclusions not supported by the evidence of record. Initially, the opinion concludes that the Veteran's separation audiogram is unreliable without adequately explaining the basis for that finding or rebutting the presumption of regularity. See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000) (discussing the presumption of regularity that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations). In addition, the private opinion relies on the Veteran's allegations of in-service onset of hearing loss despite his prior statements to the contrary and flatly concludes that the Veteran had no history of post-service noise exposure despite his prior report of such exposure. These inconsistencies render the examiner's opinion insufficient to support an award of service connection. In light of the above, a remand is required so that another VA audiological examination may be scheduled. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The AOJ should have the Veteran scheduled for a VA audiological examination to determine the nature and likely etiology of his bilateral hearing loss disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After reviewing the entire record, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss disability was incurred in or aggravated during service, or is otherwise related to service, to include in-service noise exposure. The examiner is asked to comment on the January 2016 private audiologist's opinion that the Veteran's separation audiogram is unreliable and that his hearing loss is as likely as not related to in-service noise exposure. The examiner should also discuss the Veteran's lay contentions regarding onset of his hearing loss. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 2. After completing all indicated development, the AOJ should readjudicate the claim remaining on appeal. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ H. N. SCHWARTZ 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).