Citation Nr: 18153729 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 10-06 817 DATE: November 28, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Navy from June 1966 to January 1969. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, a hearing Travel Board hearing was before the undersigned. In September 2013, the Board remanded the case to the RO for additional development. A July 2017 Board decision denied service connection for bilateral hearing loss. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC), which in an April 2018 Memorandum Decision set aside the Board’s July 2017 decision and remanded the matter to the Board for further development and readjudication consistent with the Memorandum Decision. The Board notes that an additional issue, namely, entitlement to service connection for asthma, is also certified on appeal to the Board, but as the scheduling of a videoconference hearing before the Board on the matter is pending, the issue is not ripe for appellate consideration. Entitlement to service connection for bilateral hearing loss is remanded. In the April 2018 Memorandum Decision, the CAVC found that the Board provided inadequate reasons or bases for denying service connection for bilateral hearing loss because favorable opinion evidence from a March 2009 VA examiner was not discussed, and the reason for rejecting such evidence was not explained. The CAVC also determined that a December 2015 VA examination of the ears was inadequate because it appeared to rely on an inaccurate factual premise regarding noise trauma from enemy fire in service, and because it was not clear how in his unfavorable nexus opinion the examiner assessed other evidence in the file that was favorable to the claim (i.e., the March 2009 VA examiner’s favorable nexus opinion and the Veteran’s claim he was told he had hearing loss upon undergoing audiometric testing by his employer within months following his military discharge. Finally, the CAVC determined that the Board erred in finding that VA satisfied its duty to assist, because there is no indication that VA attempted to obtain records of a 1969 hearing test for employment purposes, which the Veteran reported at a Board hearing and in other statements of record. The CAVC found further development to obtain the employment audiometry reports and for a new VA examination is warranted. The matter is REMANDED for the following: 1. Request the Veteran to submit the medical records of his audiological testing administered by his employer, Burlington Ordinance Plant, in 1969 (some of his statements indicate it was in May or June of that year), or submit authorization for the VA to obtain the records on his behalf. If he chooses the latter, secure such records. All efforts to obtain the records should be documented in the file, and the Veteran should be apprised of any futile attempts to obtain the records. 2. Arrange for an audiological examination of the Veteran (with audiometric studies) to determine the likely etiology of his currently diagnosed bilateral sensorineural hearing loss (SNHL). The claims file must be reviewed by the examiner in connection with the examination. Upon review of the record and examination of the Veteran, the consulting audiologist/otologist should respond to the following: What is the most likely etiology for the Veteran’s currently diagnosed bilateral SNHL? Is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to his active duty service in the Navy as a Seabee from June 1966 to January 1969, including exposure to noise trauma therein (which has been conceded) and/or to any ear complaints documented therein? If the bilateral SNHL is determined to not be related to the Veteran’s service, the examiner should identify the nonservice-related factor(s) considered to be the more likely etiology for the disability. The examiner should specifically comment upon (a) any threshold shift shown in service, i.e., from service entrance to separation; (b) the Veteran’s lay statements/hearing testimony that several months after his military discharge he underwent audiological testing by his employer (Burlington Ordinance Plant) in 1969 and was informed that he had hearing loss at that time, and (c) the favorable March 2009 VA nexus opinion, expressing agreement or disagreement with that opinion and explaining the reasons for the agreement or disagreement. The examiner should note that the fact that service treatment records do not document a hearing loss disability (for VA purposes, as defined in 38 C.F.R. § 3.385) is not fatal to the claim and cannot be the sole basis for rejecting a possible nexus to service. The examiner must explain the rationale for all opinions, citing to relevant evidence, supporting factual data and medical literature, and prior medical opinions. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel