Citation Nr: 21010901 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-00 951 DATE: February 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2000 to May 2000 and from January 2003 to April 2004. She had additional service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The case initially came before the Board in December 2016. At that time, the Board, in pertinent part, remanded the issue of entitlement to service connection for bilateral hearing loss for further development. That development was completed, and the case was subsequently returned to the Board for appellate review. In October 2017, the Board denied service connection for bilateral hearing loss. The Veteran appealed the October 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 memorandum decision, the Court vacated the Board’s October 2017 decision and remanded the matter for readjudication. Thereafter, in October 2019, the Board remanded the case for further development, in accordance with the February 2019 memorandum decision findings. The RO concluded its work on the October 2019 remand and issued an October 2020 supplemental statement of the case and returned the case to the Board for appellate review. In November 2020, the Veteran submitted a supplemental claim, VA Form 21-0995, on which she claimed benefits for a “hearing test.” The Veteran did not, however, opt her legacy appeal into the modernized appeals system. Thus, the Board will proceed to consider this issue in the legacy appeals system. Entitlement to service connection for bilateral hearing loss is remanded. The record reflects that there may be outstanding relevant records that have not been associated with the claims file, and attempts to obtain those records should be undertaken before this matter can be adjudicated. In a June 2018 statement relating to her appeal to the Court, the Veteran stated that she had two VA audiograms in Marion, Illinois, that VA had not considered in connection with her appeal. In the February 2019 memorandum decision, the Court determined that the Veteran’s “insistence that her hearing was checked twice in Marion, Illinois, is an argument that the Board inadequately explained why it found the duty to assist was met when no audiological records were obtained from Marion.” The Court found that the audiological tests from Marion, Illinois, that the Veteran contends that the Board overlooked are facially relevant to her claim; however, the Court also noted that it was not entirely clear that the Veteran argued to the Board that the Marion records existed, were relevant, or should have been obtained. Thus, the Court remanded the case to the Board to address the Veteran’s contentions. In the October 2019 remand, the Board directed the AOJ to obtain a new VA examination to resolve the question as to whether the Veteran’s hearing loss is measurable to the severity to qualify as a current hearing loss disability under 38 C.F.R. § 3.385. The Board noted that a new examination would diminish the reliance on the reported outstanding audiograms from Marion, Illinois, as the examination would measure the Veteran’s current hearing loss through audiometric and speech recognition testing. The Board also related that the new audiometric testing results would be highly probative evidence on the unsubstantiated question of a current hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. Thereafter, the Veteran was afforded a VA examination in October 2020, performed by a private physician. The physician found no bilateral hearing loss on examination. However, the Maryland CNC speech recognition scores were 84 percent in each ear, which meets the criteria for a current hearing loss disability that meets the criteria under 38 C.F.R. § 3.385. While the Board finds that the absence of a current disability obviates the need to search for the reportedly outstanding audiograms from Marion, Illinois, in this case, the October 2020 speech recognition scores indicate that the Veteran does have a current hearing loss disability. Thus, the Marion audiograms are relevant to the Veteran’s claim. It does not appear that the AOJ made any attempts to obtain the outstanding audiograms from Marion, Illinois. Therefore, the case must be remanded so that VA can fulfill its duty to assist. This duty includes assisting the Veteran in the procurement of pertinent treatment records. 38 U.S.C, § 5103A; 38 C.F.R. § 3.159. The Veteran contends that her bilateral hearing loss developed as a result of military noise exposure during service. The Veteran’s military occupational specialty (MOS) was Military Police. In her August 2009 claim, the Veteran stated that she was a military police officer and gunner during service and that she began noticing hearing loss in 2003 after using a semi-automatic weapon for 12 months during deployment in Iraq. In the October 2020 VA DBQ, the physician opined that the Veteran’s claimed bilateral hearing loss was less likely than not incurred in or caused by service. The physician noted that the Veteran’s hearing was within normal limits and no bilateral sensorineural hearing loss was present. Therefore, the physician concluded that it was less likely as not that the hearing loss was due to military noise exposure or acoustic trauma. The physician related that the claims file only included an October 1999 enlistment examination and that there were no separation examinations or an enlistment examination for the Veteran’s second period of service. In addition, the physician was unable to find a 2005 retirement examination referenced throughout the file. However, the Maryland CNC speech recognition scores were 84 percent in each ear, which meets the criteria for a current hearing loss disability that meets the criteria under 38 C.F.R. § 3.385. The physician did not address this in the October 2020 opinion. Thus, the Board finds that the opinion is inadequate for the Veteran’s bilateral hearing loss claim, and the matter must be remanded to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Ensure that a complete copy of the Veteran’s service treatment records has been associated with the claims file, to specifically include a 2005 Reserves retirement examination report. 2. Identify and obtain any pertinent, outstanding VA treatment records and associate them with the claims file. A specific request should be made for two VA audiograms performed at the VA Medical Center in Marion, Illinois. If the audiograms cannot be located, a memorandum of unavailability must be prepared and associated with the record. 3. Return the file to an appropriate clinician, for an addendum opinion consistent with this remand, regarding the Veteran’s bilateral hearing loss. No additional examinations or tests are needed, unless indicated by the examiner. If additional examination or tests are performed all clinical findings should be reported in detail. The examiner must review the entire claims file, to include this remand, with authoring the addendum opinion which addresses the nature and etiology of the Veteran’s bilateral hearing loss. The examiner is reminded that 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The examiner is asked to address the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral hearing loss is caused by service, to include in-service noise exposure? (b.) Is it at least as likely as not that the Veteran’s bilateral hearing loss (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate. If it is not possible to provide a specific measurement, or an opinion without report to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Veteran is competent to report her symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the audiologist rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.