Citation Nr: 1753047 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-23 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to September 1963. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In April 2014, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. In September 2014, the Board remanded the appeal for development. In April 2015, the Board denied entitlement to service connection for a bilateral hearing loss disability and remanded another issue for additional evidentiary development. The Veteran appealed the April 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Memorandum decision, the Court vacated the Board's decision that denied entitlement to service connection for a bilateral hearing loss disability. In a May 2017 decision, the Board again remanded the issue of entitlement to service connection for a bilateral hearing loss disability for additional evidentiary development. The Board notes that in the same decision, a separate issue was denied and is no longer for appellate review. The remaining matter has since returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the record reveals that a remand is necessary to ensure substantial compliance with the Board's May 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, remand is required to obtain an addendum opinion. As noted in the Introduction, the Veteran appealed the Board's initial April 2015 decision that denied entitlement to service connection for a bilateral hearing loss disability. In a September 2016 Memorandum decision, the Court vacated the Board's decision with respect to this issue and remanded it for readjudication. Essentially, the Court found that the Board failed in its duty to assist the Veteran by providing him with adequate VA examinations and that the Board placed too much reliance on the findings of an August 2012 VA examination and subsequent December 2014 VA opinion. In this regard, the August 2012 VA examiner concluded "given the history of frequency specific results indicating normal hearing sensitivity bilaterally at the time of discharge, it is not likely that this Veteran's hearing loss is a result of noise exposure that he experienced during active military duty." The Court determined that the examiner relied on nothing more than the Veteran's lack of hearing loss at separation and that the examiner did not discuss or provide a reasoned medical explanation on whether the Veteran's conceded noise exposure in service could have caused his current hearing loss. The Court also found that while the December 2014 addendum provides greater detail supporting the examiner's conclusion that the Veteran did not suffer from hearing loss during service, the December 2014 addendum also relies on nothing more than that conclusion for opining that his current hearing loss is not related to service. Moreover, the December 2014 examiner opined that "even though [the Veteran's] aircraft-related duties probably resulted in hazardous noise exposure, it was less likely than not that his hearing loss was related to service." The Court indicated that the December 2014 examiner provided an explanation as to why the evidence did not show hearing loss in service, but the only rationale for the examiner's conclusion that the Veteran's current hearing loss was not related to his military service was the normal results from the hearing examination at his separation from service and her general statement that, although "[t]here can be no doubt that noise exposure has the potential to affect hearing ... , it does not always result in hearing loss." See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see also Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Pursuant to the Board's May 2017 remand, the Veteran was afforded another VA audiometric examination in June 2017. Upon examination, the Veteran reported difficult hearing the television, in groups, and in the presence of background noise. He stated that he frequently asks people to repeat themselves and has trouble understanding others. The Veteran also reported military noise exposure around the flight deck, as well as post-service noise exposure including carpentry and sheet metal work where hearing protection was occasionally used. After a review of the Veteran's entire electronic claims file, the examiner opined that is less likely than not (less than 50 percent probability) that the Veteran's bilateral hearing loss is related to his active military service. The examiner provided the following rationale: ... [The Veteran] passed the whispered voice test when he entered military service. An exam done March 1, 1962 shows a mild to moderate relatively flat hearing loss on both ears. However, this was a group exam. An individual exam was done the same date and showed normal hearing in both ears. A hearing test done at discharge shows hearing within normal limits and no significant changes in hearing. Given these results, it is less likely as not that [the Veteran's] hearing loss was caused by or a result of his military noise exposure. There were no further remarks. In light of the above, the Board finds the Veteran's July 2017 VA audiometric examination to be inadequate for rating purposes. When the VA "undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, [it] must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's "evaluation of the claimed disability will be a fully informed one." Id. (internal quotation marks omitted); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Essentially, the Board finds that the June 2017 VA examiner used almost the exact same rationale as the previous VA examiners in finding that the Veteran's bilateral hearing loss disability is not caused by service. In other words, the opinions of the VA examiners discussed above relied on nothing more than the Veteran's lack of hearing loss at separation and they did not discuss or provide a reasoned medical explanation on whether the Veteran's conceded noise exposure in service could have caused his current hearing loss. Further, the June 2017 VA examiner did not indicate whether the Veteran's hearing loss is the type typically seen in cases of acoustic trauma, or is more likely due to advancing age, infection, or other cause, as instructed to do so in the Board's May 2017 remand. Therefore, an addendum opinion is required to reconcile/supplement the prior opinions and determine the nature of and etiological basis for the Veteran's bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the June 2017 VA audiologist (or, if unavailable, a similarly suited audiologist) to determine the nature and etiology of the Veteran's bilateral hearing loss. The audiologist is to be provided access to the Veteran's electronic Virtual VA and VBMS files. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and conceded in service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. The VA audiologist must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that the Veteran's bilateral hearing loss manifested in service or is otherwise causally or etiologically related to his military service, to include conceded in service noise exposure. If the audiologist determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. It should also be indicated whether the hearing loss is the type typically seen in cases of acoustic trauma, or is more likely due to advancing age, infection, or other cause. All prior reports should be reconciled, if necessary. The opinion should also include a discussion of (if the type of hearing loss common to acoustic trauma is found) whether there is any medical basis to suggest that there might be the delayed onset of hearing loss due to acoustic trauma in service. 2. After the development requested has been completed, the AOJ should review any 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 at once. 3. After completing any additional development deemed necessary, readjudicate the claim. If any benefit requested on appeal is not granted the Veteran and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).