Citation Nr: 1808218 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-19 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1958 to December 1958 with additional time in the reserves. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. 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). In a January 2018 written brief presentation, the Veteran's representative argued that the record is sufficient to grant an inferred claim of service connection for tinnitus. Therefore, the issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that the onset of his bilateral hearing loss was a result of firing range shooting without any ear protection during basic training at Fort Chafee during his active duty service time. He also states he underwent artillery camp, in the summer of 1961, without ear protection. The Veteran states that he was diagnosed as being tone deaf in late 1960 or early 1961, and purchased his first hearing aid in 1983. The Veteran was provided a VA examination in February 2015 to determine the nature and etiology of the Veteran's bilateral hearing loss. The examiner determined she was unable to render a medical opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation. The examiner consulted literature regarding delayed onset hearing loss, which stated that "...it is difficult or impossible to determine with certainty how much a specific individual's hearing loss was acquired during military service." Moreover, the examiner noted that the Veteran's military occupational specialty (MOS) was considered as a low risk for probable exposure to hazardous noise per the Duty MOS Noise Exposure Listing and the Veteran reported a positive history of recreational noise exposure. The examiner also noted that "current bilateral high frequency hearing loss appears to be greater than what would be expected due to aging alone, but determined that a nexus between hearing loss and military service cannot be determined without resorting to mere speculation." In May 2017, the Board found that the February 2015 VA examination was inadequate because the examiner did not address the Veteran's lay statements and remanded the claim to obtain an addendum opinion. Such opinion was obtained in June 2017. The same VA examiner who conducted the February 2015 VA examination provided an opinion that "[w]ith the absence of audiograms at entrance and separation[,] it is this audiologist's opinion that it is "reasonable to infer" based on the evidence of record and exam findings on 2/5/15 that the Veteran's bilateral hearing loss is less likely than not (less than 50/50 probability) caused by or result of active military service." In the January 2018 written brief presentation, the Veteran's representative argued that the Veteran's March 1957 enlistment examination showed defective hearing, which supports that he was hearing loss prior to service. In this regard, the representative maintains that the question of whether the Veteran's pre-existing hearing loss was aggravated during service needs to be addressed but the June 2017 addendum opinion failed to do so. It is not clear whether the March 1957 enlistment examination, in fact, notes defective hearing. Although 'hearing' is listed under the summary of defects and diagnoses, the examining physician then referred to the whispered and spoken voice test scores of 15/20 for the right ear and 15/15 for the left ear. Therefore, the Board must seek clarification as to whether this data indicates defective hearing as claimed by the Veteran. Further, the representative raised several other arguments regarding the deficiencies in the June 2017 addendum opinion. First, the representative pointed out that the examiner did not inquire as to whether the Veteran shot M-1 rifle right-handed or left-handed in service. The representative argues that if the Veteran shot left-handed, that would be some evidence tending to support noise-induced hearing loss, given that his hearing in the right ear is much worse than in the left ear. To that effect, the representative cited to an internet article noting that shooters of shoulder arms have an asymmetric hearing loss with a greater deficit in the ear opposite the shoulder from which the gun is fired. The representative also requested that in considering the Veteran's family history, the examiner should obtain information from the Veteran what type of hearing loss his mother had because there would be no reason to consider family history as a risk factor if the mother did not have sensorineural hearing loss. Additionally, the representative observed that the Veteran has a positive history of childhood mumps and measles, which are among the viruses associated with sudden hearing loss. The examiner should be asked to consider these viruses as a potential factor in the etiology of the Veteran's hearing loss. It was also argued that the examiner should obtain detailed information from the Veteran as to the type of lawnmower used by the Veteran (gas-powered or old-style push mower), the frequency or duration of his recreational noise exposure. Finally, the representative argues that the June 2016 addendum opinion is contradicted by the examiner's statement that "without audiograms at entrance and separation, it would be 'difficult or impossible to determine with certainty' whether hearing loss was acquired during service." Based on the foregoing, the Board finds that a new VA audiology examination is necessary addressing all lay contentions raised by the Veteran and his representative. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, the case is REMANDED for the following actions: (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. The Veteran should be afforded a VA audiology examination to determine the nature and etiology of his current bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should then offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the disability existed prior to service. The examiner must provide a complete rationale for any opinion offered. If the examiner finds that the Veteran's disability clearly and unmistakably existed prior to service, then the examiner is requested to offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the pre-existing disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disability. If the examiner finds that a disability did not clearly and unmistakably exist prior to service, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that bilateral hearing loss is related to active service. The examiner must address the Veteran's contention that the March 1957 enlistment examination indicated defective hearing. Concerning this, on the enlistment examination report, 'hearing' is listed under the summary of defects and diagnoses and the examining physician referred to the whispered and spoken voice test scores of 15/20 for the right ear and 15/15 for the left ear. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In this regard, the examiner is asked to obtain detailed information from the Veteran as to (i) the Veteran's dominant hand, (ii) the type of the Veteran's mother's hearing loss, (iii) the type of lawnmower used by the Veteran (gas-powered or old-style push mower), and (iv) the frequency or duration of the Veteran's recreational noise exposure, in assessing the potential risk factors for hearing loss, for the Veteran. Additionally, given the Veteran's positive history of childhood mumps and measles, the examiner should consider whether these viruses are a potential factor in the etiology of the Veteran's hearing loss. In rendering this opinion, the examiner must address any conflicting medical evidence of record. In particular, the examiner must attempt to reconcile the June 2017 addendum opinion with a study cited to the effect that "without audiograms at entrance and separation, it would be 'difficult or impossible to determine with certainty' whether hearing loss was acquired during service," which appears to be inconsistent with the June 2017 opinion that it is "reasonable to infer" that the Veteran's bilateral hearing loss is less likely than not caused by or result of active military service. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examining physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the physician concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the physician should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed thoracolumbar spine and left hip disorders. See Jones v Shinseki, 23 Vet App 382 (2010). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ LANA K. JENG 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).