Citation Nr: 1801808 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-36 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1966. He was awarded a Combat Infantryman Badge in recognition of his service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets additional delay, but finds that further development is necessary to fully satisfy the duty to assist the Veteran. Generally, in order to prove service connection, there must be evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In this case, bilateral hearing loss for VA purposes was demonstrated at a November 2015 VA examination. In addition, the Veteran was awarded a Combat Infantryman Badge in recognition of combat service while in Vietnam. The Veteran believes noise exposure from being assigned to 11C Heavy Weapons Infantry during service caused his current hearing loss. See May 2016 Notice of Disagreement; July 2016 Form 9. In-service noise exposure, considered an injury to the ear, is conceded. At a November 2015 VA examination, the examiner noted that the Veteran had been an infantryman during service and that military noise exposure was likely. However, she noted that the Veteran's service treatment records (STRs) were not available for her review and she would reserve any opinion regarding the etiology of the Veteran's hearing loss until STRs were provided. As indicated in an April 2016 notification letter, the Veteran's STRs could not be located and are unavailable for review. It was noted that all efforts to obtain the records had been exhausted and the determination was made that further attempts to obtain them would be futile. The Board notes that the absence of in-service 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). The existence of 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 may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In the case, the Board finds that remand is necessary to obtain an opinion regarding the likely etiology of the Veteran's hearing loss in light of his current disability and conceded exposure to excessive noise in service. On remand, relevant ongoing medical records should be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Associate outstanding VA treatment records with the electronic claims file. 2. Provide access to the electronic claims file to an appropriate VA examiner to provide an addendum opinion. It should be noted that the Veteran served in the Infantry during service and was awarded a Combat Infantryman Badge. Service noise exposure is conceded. In addition, the Veteran's service treatment records (STRs) are unavailable and it has been determined that further efforts to locate them would be futile. Prior to rendering an opinion, the examiner should consider that the absence of in-service evidence of a hearing disability during service 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). Following review of the record, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including conceded noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of sensorineural hearing loss in determining the likelihood that current hearing loss was caused by noise exposure, acoustic trauma or an injury in service as opposed to some other cause. A rationale for any opinion offered is requested. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. 3. When the development requested has been completed, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, furnish the Veteran and his representative with a supplemental statement of the case and provide the Veteran with an opportunity to respond in accordance with applicable statutes and regulations. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).