Citation Nr: 1636761 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 11-08 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1982 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2015, the Board granted service connection for tinnitus and remanded the claim for bilateral hearing loss for further development. The case has since been returned to the Board for appellate review. This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. The Virtual VA electronic claims file contains records that are either duplicative of the documents in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Initially, the Board notes that the copy of the May 2016 Supplemental Statement of the Case (SSOC) that was mailed to the Veteran was returned as undeliverable. Notably, the AOJ has subsequently sent numerous letters to the Veteran at a different address that have not been returned as undeliverable. As such, it appears that the May 2016 SSOC may have been mailed to an incorrect address. Therefore, remand is necessary to confirm the Veteran's current address and to furnish him an SSOC in compliance with the Board's August 2015 remand directives. See 38 C.F.R. § 19.31(2015); Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Lamb v. Peake, 22 Vet.App. 227, 231 (2008) (observing "that it is certainly true that when a notice letter is returned unclaimed, the Secretary must check the claimant's file to determine if another notice letter needs to be sent"). Furthermore, remand is necessary to obtain a fully adequate VA medical opinion. Following the August 2015 Board remand, the Veteran was afforded a VA examination in November 2015. However, the AOJ determined that the accompanying opinion was inadequate. As such, an addendum opinion was obtained in April 2016. The April 2016 VA examiner opined that the Veteran's left ear hearing loss was not aggravated by his military service, to include his exposure to acoustic trauma. The examiner further opined that the Veteran's right ear hearing loss was less likely as not caused by or otherwise related to military service. In so finding, the examiner reported that there was no significant change in hearing between audiology results obtained in 1982 and the May 1984 separation examination. However, the examiner provided no explanation as to why the threshold shifts noted in the Veteran's service treatment records were not significant. Moreover, the examiner reported that the level "1" PULHES profile listed on a February 1984 examination report provided evidence that there was no significant change in hearing between March 1982 and February 1984. However, the examiner failed to address the level "2" PULHES profile listed on the Veteran's May 1984 separation examination. Moreover, in rendering her opinions, the examiner indicated that hearing loss due to noise occurs during the exposure and not subsequently. Additionally, she noted that the Veteran did not seek treatment for hearing problems during his active duty and that there was no evidence that he sought treatment within one year of his discharge. However, the absence of in-service evidence of a hearing disability (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). The Board acknowledges that the Veteran submitted a March 2011 private medical opinion from Dr. R.G. (initials used to protect privacy). However, Dr. R.G. provided insufficient supporting rationale for his positive nexus opinion. In particular, he failed to reconcile his opinion with his determination that the Veteran's hearing loss configuration was not consistent with noise induce hearing loss. Based on the foregoing, the Board finds that an addendum medical opinion is required to ascertain the nature and etiology of the Veteran's bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, 11 Vet. App. 268 at 271. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to verify the Veteran's current address and send him a copy of the May 2016 SSOC. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hearing loss that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include any records from the Bay Pines VAMC and Salem VAMC dated from October 2015 to the present. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. 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 assertions. The examiner should specifically consider the March 2011 private medical statement from Dr. R.G. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note 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 examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right ear hearing loss is causally or etiologically related to his military service, to include noise exposure therein. The examiner should also provide an opinion as to whether there was an increase in the severity of the Veteran's preexisting left ear hearing loss during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening or "aggravation" of the underlying pathology. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. In rendering his or her opinion, the examiner should specifically address whether there was a threshold shift during service. The examiner should consider the audiogram results from the Veteran's March 1982 enlistment and May 1984 separation examination reports. The examiner should also comment on the likelihood that loud noises experienced resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If the examiner finds auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which result from noise exposure generally presents or develops 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. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2015). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).