Citation Nr: 1802382 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-05 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1956 to October 1960. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in Portland, Oregon. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remands this matter for an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss disability, with consideration of the Veteran's November 2017 videoconference hearing testimony. At the November 2017 videoconference hearing, the Veteran testified that he was exposed to acoustic trauma during his service as an air frame and power plant mechanic. The Veteran noted that he was only provided with small ear plugs in service and that these did not adequately protect his hearing. The Veteran testified that he was exposed to noises from engines running around or running up on different parking pads and from aircrafts flying over base. The Veteran also explained that he was exposed to noises from different firearms during training. The Veteran further testified that there was one particular instance when he was performing maintenance on a B52 and the jet engines fired up and went to high power, exposing his right ear to the loud noise. The Veteran stated that as a result of this event, he could not hear out of his right ear and reported such to the clinic at the time. The Veteran explained that he was unable to hear out of his right ear for seven days or more, and that even after those several days he was only able to hear a little bit, with the sound level reduced from what he was able to hear out of his left ear. Additionally, at the videoconference hearing, the Veteran stated that at examination upon discharge in October 1960 he put a question mark in the area where he was asked whether he was having problems with his hearing. The Veteran testified that he placed the question mark there because he was still having trouble. At the November 2017 hearing, the Veteran further explained that he worked for McDonald Douglas Aircraft post-service, but that his job was to assist in building lab test components for testing different components built. The Veteran explained that he was located in a warehouse during this employment and that his noise exposure was considered to be normal. The Veteran further testified that, post-service, he hunted "sporadically, sparingly," with him firing a gun between five and 10 times a year without wearing ear protection. Primarily, upon review of the Veteran's claims file, the Board concedes in-service acoustic trauma, remands this matter for an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss. The Veteran's military personnel and service records corroborate the Veteran's assertions. The DD-214 indicates that the Veteran served as an aircraft mechanic. Thus, the Board finds that the Veteran's assertions as to his acoustic trauma in service are generally consistent with his service as documented and described. Given the above discussion, the Board considers the Veteran to be a reliable historian as to his in-service experiences, and concedes acoustic trauma in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the crucial remaining issue is whether there is a nexus between the Veteran's current bilateral hearing loss and his conceded in-service noise exposure. The Board notes that the Veteran was last afforded a VA examination of his bilateral hearing loss disability in March 2016. The March 2016 VA examination report indicates bilateral hearing loss, with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear, and the VA examiner opined that the Veteran's right and left ear hearing loss were not at least as likely as not caused by or a result of an event in service. In support of the March 2016 VA examiner's opinion, the VA examiner explained that although the Veteran described significant exposure to noise during service with some specific instances of acoustic trauma, the Veteran's hearing upon discharge from military service was normal, and no changes in hearing were observed during the Veteran's time in the service. Additionally, the VA examiner found that the "configuration of Veteran's current right hearing loss is also not consistent with that typically seen from noise exposure." The Board finds that although the VA examiner noted the Veteran's asserted in-service acoustic trauma and in-service right ear hearing loss, the Veteran's detailed testimony and assertions must be considered and addressed by a VA examiner upon remand. The VA examiner is directed to consider and address the Veteran's testimony regarding his in-service and post-service experiences, as set-forth above; and, in addition, to consider and address the Veteran's arguments presented at the November 2017 hearing. Specifically, at the November 2017 hearing, the Veteran argued that the in-service whisper tests are not an accurate measurement of hearing acuity. The Veteran, therefore, argued that it is impossible to determine what the Veteran's actual hearing acuity was and impossible to determine whether the Veteran's hearing demonstrated a worsening. Instead, the Veteran stated that the fact that he reported complaints of ringing in his ears in 1956 suggests that he was exposed to excessive noise in service. Moreover, the Veteran testified that, from the evidence available, there are significant changes at the 2000 frequency, which indicate the beginning of a worsening of the Veteran's hearing at discharge. Therefore, upon remand, the examiner is to consider the Veteran's arguments as presented at the November 2017 videoconference hearing, and provide an opinion that is supported by thorough rationale and a complete history of the Veteran's bilateral hearing loss disability. Additionally, upon remand, the examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. Any opinion furnished must be sufficiently supported by medical knowledge and rationale, and therefore, is conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 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. Obtain any outstanding and ongoing VA treatment records. 2. Contact the Veteran and request that he submit or authorize the release of any private treatment records, to include any outstanding treatment received from Dr. J. B. See November 2017 Hearing Transcript. If a completed authorization form is provided, attempt to obtain the identified records. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. Thereafter, the claims record and a copy of this remand must be made available to, and reviewed by, the March 2016 VA examiner (or a suitable substitute) to determine the etiology of the Veteran's bilateral hearing loss. The examiner must indicate on the examination report that the case was reviewed again. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. The examiner should provide an opinion addressing the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss was incurred in or aggravated by service to include acoustic trauma in service? In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's noise exposure consistent with his duties in service, to include acoustic trauma from firearms during training, from engines running around or running up on different parking pads, and from aircrafts flying over base. See November 2017 videoconference hearing testimony. The examiner is also directed to the Veteran's assertions regarding the incident in-service during which the jet engines of a B52 fired up and went to high power, exposing his right ear to loud noise and causing complete loss of hearing in his right ear for a week and impaired hearing thereafter. See November 2017 videoconference hearing testimony. Additionally, the examiner is directed to the Veteran's assertion that at examination upon discharge in October 1960 he put a question mark in the area where he was asked whether he was having problems with his hearing. The Veteran testified that he placed the question mark there because he was still having trouble. See November 2017 videoconference hearing testimony. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in furtherance of his perceived hearing loss. See Jandreau, 492 F.3d at 1377. The examiner is to consider and address the Veteran's arguments as set-forth at the November 2017 videoconference hearing. The Veteran argues that the in-service whisper tests are not an accurate measurement of hearing acuity, and therefore, that it is impossible to determine what the Veteran's actual hearing acuity was and impossible to determine whether the Veteran's hearing demonstrated a worsening. Instead, the Veteran states that the fact that he reported complaints of ringing in his ears in 1956 suggests that he was exposed to excessive noise in service. The Veteran also argues that, from the evidence available, there are significant changes at the 2000 frequency, which indicate the beginning of a worsening of the Veteran's hearing at discharge. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 4. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS 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) (2017).