Citation Nr: 18146210 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-43 571 DATE: October 31, 2018 REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The Veteran had honorable active duty service with the United States Army from May 2001 to March 2003. REASONS FOR REMAND Although further delay is regrettable, the Board of Veterans’ Appeals (Board) finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to service connection for bilateral hearing loss. He asserts that his hearing loss is a result of acoustic trauma sustained in active service. In November 2012, the Veteran was provided an examination by the Department of Veterans Affairs (VA) for his claimed bilateral hearing loss. The examination failed to show impaired hearing as required by VA regulations. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Here, the November 2012 examination did not show an auditory threshold of 40 dB or greater in any of the frequencies of 500, 1,000, 2,000, or 4,000, nor did it show a threshold of 26 dB or greater for at least three frequencies of 500, 1,000, 2,000, 3,000, or 4,000. With respect to Maryland CNC Test results, the Veteran had a score of 98 percent in the right ear and 100 percent in the left ear. Thus, the examination revealed that the Veteran did not have a hearing loss disability for VA purposes. The Board notes that the November 2012 VA examiner reported that the Veteran had hearing loss prior to service, and opined that the Veteran’s pre-existing hearing loss was aggravated beyond normal progression by military noise exposure. The Board discounts the aggravation opinion for the Veteran’s bilateral hearing loss, as the Veteran did not have a degree of hearing loss in either ear at entry that met VA’s definition of a disability for hearing loss under 38 C.F.R. § 3.385. See April 2001 entrance examination report. Thus, the Veteran is presumed sound for service connection purposes. If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The Veteran has stated his belief that the November 2012 examination findings were inaccurate, as his tinnitus prevented him from properly responding to the examiner’s hearing test. See December 2014 VA Form 9. Thus, the Veteran asserts that the VA examination was inadequate, as he suggests that the above-discussed audiometric results were based on inaccurate information with regard to his hearing loss. Furthermore, the Board affords limited probative value to the November 2012 VA examination due to the inaccuracy of the portion of the report pertaining to the aggravation opinion as discussed above. Additionally, the Board acknowledges that the Veteran’s representative has specifically requested that the Veteran be provided with a new VA examination for his bilateral hearing loss. See July 2016 VA 646 Statement of Accredited Representative in Appealed Case. Therefore, in light of the Veteran’s assertion that the November 2012 VA examination was inadequate, and in consideration of the request for a new VA examination, the Board finds that a new VA examination for the claimed bilateral hearing loss is warranted. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an audiological examination to evaluate his claimed bilateral hearing loss. The examiner must review the claims file and all previous VA examination reports. The examination report should also show consideration of the Veteran’s documented medical history and assertions/complaints. All indicated studies, should be completed, and all clinical findings reported in detail. The examiner is asked to provide an opinion as to the following: (a) Identify all current hearing loss disabilities associated with the Veteran. (b) Is it at least as likely as not that any identified hearing loss disability manifested during, or as a result of, active military service? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel