Citation Nr: 1801820 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-22 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active military service from January 1967 to November 1972, from May 1974 to June 1981, and from December 2007 to December 2008. He also had additional service in the Colorado Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This case was remanded for additional development in July 2012 and June 2016. On remand, in a September 2016 rating decision, the issues of service connection for degenerative joint disease of the lumbar spine (claimed as a back disability), adductor tendinosis of the left hip (claimed as left groin pain), and degenerative joint disease of the right hip which had also been remanded in July 2012 and June 2016, were granted. Accordingly, those issues are no longer on appeal. The Board also notes that in January 2012, the Veteran testified at a videoconference hearing chaired by a VLJ. A transcript of the Board hearing has been associated with the Veteran's claims file. After the June 2016 remand, upon recertification to the Board, the Veteran did not respond to notification that the VLJ who presided over that hearing is no longer employed by the Board and he had the right to schedule another Board hearing. Therefore, the Board has proceeded with adjudication of his appeal. See 38 C.F.R. § 20.707. The case is now assigned to the undersigned. 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 his current bilateral hearing loss disability is due to noise exposure during service or the result a head injury during his first period of active duty service. He further asserts that his subsequent periods of active duty service, active duty for special work (ADSW), and/or active duty for training (ACDUTRA) aggravated his hearing loss disability. In accordance with the June 2016 remand, the Veteran was afforded a VA examination in July 2016 to determine the nature and etiology of his hearing loss disability. The Board finds the opinion offered by the July 2016 examiner to be inadequate for several reasons. Accordingly, a new opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268 (1998). First, the examiner failed to address the Veteran's credible lay evidence of continued symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). During the January 2012 hearing, the Veteran testified that he began having trouble hearing during his first period of active duty service, and that it has persisted since. On July 2016 VA examination, the Veteran also reported that he first noticed he had difficulty hearing about 45 years before (about 1971). On remand, this lay evidence of continuity of symptomatology since service must be addressed by a VA examiner. Regarding the Veteran's second period of active duty service, the examiner opined it was less likely than not that the Veteran's hearing was damaged between 1977 and 1981, the period between the last audiometry examination and his separation, because the Veteran did not serve during a combat situation and a specific event or excessive noise exposure was not reported during this time. She did note that the Veteran was likely exposed to excessive loud noises during this period and noted that she could not "be completely certain that hearing was not affected by noise during this time." The examiner ultimately attributed his currently hearing loss disability to "some event or aging which occurred between 1981 and 2006," based on the insufficient current scientific evidence regarding delayed onset hearing loss due to military noise exposure. Accordingly, the Board finds that the examiner did not provide adequate rationale to explain why the Veteran's current hearing loss disability was not related to the conceded noise exposure during his second period of active duty service. Additionally, on July 2016 VA examination, the Veteran also asserted that his hearing loss may be attributable to an in-service toboggan accident during his first period of active duty service, where he suffered a head injury. On remand, the VA opinion should thoroughly address all theories of entitlement. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any hearing complaints since December 2015. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records. 2. After the completion of the above, arrange to obtain an addendum opinion (with examination only if deemed necessary by the provider) from the July 2016 VA examiner (or from another provider if the July 2016 examiner is unavailable). The entire record, including this remand, must be reviewed by the examiner. Based on the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the Veteran's hearing loss was incurred in or is otherwise related the Veteran's active duty or ACDUTRA service, to include as a result of in-service noise exposure and as a result of his in-service head injury? The examiner is specifically requested to consider the Veteran's lay evidence of continuity of symptomatology ever since his first period of active duty service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why 3. The AOJ should then review the record and re-adjudicate the claims. If the benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ M. E. LARKIN 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).