Citation Nr: 1806689 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-26 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps (USMC) from October 1954 to October 1959 and in the United States Army from November 1961 to November 1964, with additional Reserve service until 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2008, the RO denied the claim of entitlement to service connection for bilateral hearing loss. The evidence listed on this rating decision included notation of service treatment records (STRs) dated between October 21, 1954 to November 27, 1964; however, no audiology findings were reported. Further, the October 2008 VA examiner's report showed review of the file and notation of September 1954, October 1956, and October 1959 whisper voice tests, as well as a March 1969 USMC Reserves enlistment examination report, but no records were referenced related to the Veteran's service in the Army. These missing records were sought and received into the file after the Board's May 2017 Remand. The records received indeed include in-service audiological testing and it appears that these pertinent STRs were not a part of the record at the time of the November 2008 rating decision. When VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence. 38 C.F.R. § 3.156(c) (2017). As the pertinent records in this case were associated with the file after the November 2008 adjudication, the Board will consider the claim on a de novo basis. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in October 2008. The examiner confirmed the existence of a current hearing loss disability and reviewed the evidence of record as it was at the time of the examination. The September 1954, October 1956, and October 1959 normal hearing to whisper voice testing were referenced, as well as the March 1969 enlistment examination for the USMC Reserves. Since that time, VA has developed the evidence of record and additional STRs were added to the file, including a June 1964 separation examination report and several audiograms during the Veteran's Reserve service showing a gradual increase and shift in puretone threshold findings. The June 1964 separation examination report shows puretone thresholds at 10. The entrance examination during this period of service is not available to show the findings upon entrance into this second period of service. The October 1969 USMC Reserves examination shows findings slightly higher, and an August 1979 audiological examination shows an additional increase, with October 1987 findings even higher. The Veteran claims that this gradual increase in the puretone thresholds is indicative of the onset of hearing loss due to his conceded in-service noise exposure. To date, a VA examiner has not had the opportunity to review the entire file and make such a determination. Again, the file was incomplete at the time of the 2008 examination. Under 38 C.F.R. § 3.159(c)(4), the Veteran is entitled to this examiner's opinion to have been based upon a review of the evidence of record. As the entire record was not available for review at the time of the 2008 examination, the Board finds that a new opinion should be sought based upon the review of the complete record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 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 an opinion from a VA examiner with sufficient expertise to determine and discuss the potential causes of the Veteran's bilateral hearing loss. All pertinent evidence should be reviewed by the examiner, to include all service treatment records added to the claims file since the 2008 VA examination. The examiner should assess whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's hearing loss disability initially manifested during service or is the result of any in-service disease or injury, to include the Veteran's conceded in-service acoustic trauma. The examiner is asked to discuss the findings within the service audiological testing reports, including the progression of puretone threshold results as service went on, including into Reserve service. The examiner should address the Veteran's contention that the normal whisper voice tests, followed by the 1969 puretone threshold findings of 10, followed by ongoing increases in puretone threshold findings in Reserve audiological reports is indicative of noise induced hearing loss. The examiner should provide reasons for the opinions. If the examiner is unable to provide an opinion without resort to speculation; the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).