Citation Nr: 1746945 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-33 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has right ear hearing loss that is due to exposure to acoustic trauma in service. He maintains that his hearing loss was the result of exposure to noises from using heavy equipment and jackhammers for years without ear protection while on active duty service. His DD-214 shows that his related civilian occupation was "850 excavating occupations." Service connection for left ear hearing loss was granted in the July 2012 rating decision, based on an April 2012 VA examiner's finding that the Veteran had pre-existing left ear hearing loss that was aggravated beyond normal progression during his military service. However, the examiner's opinion is inadequate to adjudicate the present claim because it only references the level of hearing acuity in the Veteran's left ear. The examiner also noted that at the time of discharge, the Veteran's hearing was within normal limits at all test frequencies. However, audiogram reports taken at both entrance and discharge from active duty service indicate that the Veteran experienced some diminished hearing acuity in his right ear. Further, the VA examiner seemed to call into question the validity of the April 1978 audiogram results recorded at the time of the Veteran's discharge, stating without explanation that "[i]t is doubtful whether this last test was a clear reflection of auditory acuity." The absence of 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the April 2012 VA examiner did not explain why the delayed onset of hearing loss was a significant factor in his determination that the Veteran's right ear hearing loss was less likely than not due to acoustic trauma during active service. In light of this deficiency, a clarifying opinion is needed before the Board can adjudicate the claim. Since the claims file is being returned it should also be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran. If no medical records are available, this fact should be noted in the Veteran's claims file. 2. Then forward the Veteran's claims file to the examiner who conducted the April 2012 VA hearing loss examination (or another appropriate examiner if that examiner is unavailable) for supplemental comment with regard to his service connection claim for right ear hearing loss. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. If the opinion provider determines that an addendum opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to provide an opinion addressing the following question: Is it at least as likely as not (50 percent or higher probability) that the Veteran's diagnosed right ear hearing loss had its onset in or is otherwise related to active duty service, to include as a result of in-service exposure to acoustic trauma? Detailed rationale is requested for all opinions provided, and the examiner is asked to specifically address the Veteran's reports concerning the onset of his hearing loss symptoms. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including noise exposure and his observable symptomatology. The examiner should also comment on changes in right ear hearing acuity as reflected in audiogram findings recorded at entrance and discharge from active duty service. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should discuss the medical bases and principles underlying his or her opinions. 3. Following any other development deemed necessary, re-adjudicate the Veteran's claim. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further 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). _________________________________________________ M. E. LARKIN 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) (2016).