Citation Nr: 1802806 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-35 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left leg injury. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2016. The Veteran's wife was present as a witness. A transcript of the hearing is of record. The issue of entitlement to service connection for a left leg injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to service. CONCLUSION OF LAW Resolving any doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 (2016) need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. This regulation does not necessarily preclude service connection for hearing loss that first meets the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304 (2016); Hensley, 5 Vet. App. at 159-60. If medical evidence sufficiently demonstrates a medical relationship between the Veteran's in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service and the requirements of 38 U.S.C.A. §§ 1110 are satisfied. Hensley, 5 Vet. App. at 160. The Veteran asserts that his current bilateral hearing loss disability was incurred during service as a result of noise exposure, while working in his military occupational specialty (MOS) as field artillery operations/fire direction assistant. The Veteran received an expert badge W/M-16 rifle bar and grenade bar award. Consequently, the Board concedes noise exposure in service. The Board acknowledges that the service treatment records do not demonstrate that the Veteran had hearing loss as defined in 38 C.F.R. § 3.385 during service. Consequently, a VA examination with a medical opinion was obtained. At the Veteran's February 2013 VA examination, the examiner opined that it was not at least as likely as not that the Veteran's hearing loss was caused by service. The examiner reasoned that hearing was normal at separation and there was no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma. In contrast, the Veteran's private audiologist in an August 2013 statement found that the Veteran's duties as a tank and heavy vehicle driver, field artillery and shooting large and small arms, more than likely caused acoustic trauma and damage to the hearing nerve. In addition, the private audiologist stated that the Veteran was approved for tinnitus which usually goes hand in hand with hearing loss and that it can take decades for noise exposure and acoustic trauma to manifest into a measurable hearing loss. Therefore, the Board finds that it is at least in equipoise that the Veteran's current bilateral hearing loss is related to the noise exposure he incurred during his period of active duty. There is both negative and positive evidence. Although the VA examiner provided a negative medical opinion, the reliance solely on no evidence of hearing loss shown in service renders the medical opinion insufficient since hearing loss does not need to be shown in service for service connection to be established. Hensley, supra. Finally, the private audiologist stated that the Veteran's bilateral hearing loss is consistent with noise exposure and the evidence of record shows noise exposure in service. Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for his bilateral hearing loss is warranted. See 38 C.F.R. § 3.102. In conclusion, the Board resolves reasonable doubt in the Veteran's favor that his current bilateral hearing loss is related to his noise exposure during his active duty service. Service connection for bilateral hearing loss is, therefore, granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. REMAND While further delay is regrettable, the Board finds additional development is necessary before deciding the Veteran's claim of entitlement to service connection for a left leg injury. Service treatment records show that the Veteran was diagnosed with traumatic subacute hematoma in February 1975. In June 1975, the Veteran was diagnosed with a ruptured muscle. On the Veteran's February 1976 separation examination, the examiner noted that the Veteran had a post left leg injury but no residuals were noted. After service, a medical note from March 1977 identified edema and numbness in the left leg. In a February 2013 VA examination, the examiner found that current left lower leg x-rays did not show any residuals from the in-service events. The Veteran stated he had constant pain and that about one year earlier, he had numbness, tingling and pain in the left ankle area. The examiner opined that due to the lack of medical documentation that showed a chronic disorder/diagnosis of the left leg with periodic medical evaluation and treatments, it was less likely than not that his current lower left leg condition was due to the claimed in-service injury or event. The Board finds this opinion inadequate as it does not address the Veteran's current complaints of numbness and pain in relation to the Veteran's post-service treatment of edema and numbness in the left leg. In addition, the Board finds that there is no clear diagnosis of the Veteran's disability, if any. Therefore a new VA examination, if necessary, and opinion is necessary to adjudicate this issue. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records and associate them with the claims file. The Veteran should assist with this effort if possible. 2. Schedule the Veteran for a VA examination, if necessary, or obtain an addendum VA opinion to determine the etiology of the Veteran's left leg injury. First, the examiner is asked to clarify a diagnosis of the left leg, if possible. All necessary tests should be conducted. If there is a clear diagnosis, then upon a review of the record, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left leg injury was caused by service. The examiner should consider the Veteran's lay testimony as well as the in service and post service treatment records. Specifically, the examiner should consider the March 1977 treatment note which documented edema and numbness in relation to the Veteran's current complaints of numbness. A complete rationale must be provided for any opinion or conclusion expressed. If the examiner is unable to provide any requested opinions, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. Then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned the Board for further appellate action. 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.A. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs