Citation Nr: 1754141	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-08 899	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


Entitlement to service connection for bilateral hearing loss.


Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


The Veteran


J. Saikh, Associate Counsel


The Veteran served on active duty from July 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 

In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record. 

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

In a December 2016 statement, the Veteran reported that he recently experienced memory loss which he attributed to noise exposure in service.  If the Veteran and his representative would like to file a claim for service connection for memory loss, they are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


The Veteran was afforded a VA examination in May 2013 in connection with his claim for service connection for bilateral hearing loss.  However, the examiner could not render an opinion regarding the etiology of the disorder because the claims file was not available for review.  In an August 2013 addendum opinion, the examiner indicated that the claims file was available for review and opined that it was less likely than not that the Veteran's bilateral hearing loss was "proximately due to or the result of the Veteran's service connected condition."  In so doing, he noted that the Veteran's enlistment and separation audiograms were normal
without any indication of significant auditory threshold shifts occurring during his military service.  Instead, the examiner listed several other factors incurred subsequent to service, which may have contributed to the Veteran's hearing loss.

Since that examination, the Veteran submitted an opinion from his private physician, Dr. D.H. (initials used to protect privacy), which stated that his hearing loss was more likely than not a result of his military service.  In support of this opinion, the physician explained that there was hearing loss documented at the frequencies of 1000 and 2000 Hertz at the time of his separation, which were not documented at the time of induction.  The physician concluded that those findings demonstrated a progression of hearing loss during that time interval.  However, the Board notes that the results of those audiograms do not demonstrate hearing loss as defined by VA. 38 C.F.R. § 3.385.  Rather, they show a slight threshold shift.  Therefore, the Board finds that an additional medical opinion is need to address that shift.  

The Veteran has also submitted a November 2016 audiogram which appears to have resulted from an audiology examination conducted at the Iowa City VA Medical Center (VAMC).  There are no other records from the Iowa City VAMC which have been associated with the record, as such, on remand these records should be obtained and associated with the file.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hearing loss.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA medical records, to include any records from the Iowa City VAMC.

2.  After completing the foregoing development, the AOJ should refer the claims file to the August 2013 VA examiner or to another suitably qualified examiner if he is unavailable for a medical opinion addressing the etiology of the Veteran's hearing loss. 

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.  He or she should specifically consider the Veteran's November 2016 hearing testimony, including his statements that he first noticed his hearing loss when he temporarily lost hearing ability during service and never fully regained his hearing subsequent to that incident.  The examiner should also consider the Veteran's statements that he was exposed to noise from the use of weapons, such as machine rifles, hand grenades, and grenade launchers.  The examiner should also consider that the Veteran has worked in various jobs since service, including working in a tile factory with machinery and working as a welder of machine launchers, but he has denied any occupational noise exposure that would cause acoustic trauma.

It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

It should also be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. 

The examiner should opine as to whether it is at least as likely as not that the Veteran's current hearing loss is causally or etiologically related to his military service, including noise exposure therein.

In so doing, the examiner should consider Dr. D.H.'s opinion and address whether the significance, if any, of any threshold shift in service.   

The examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.)

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.  Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
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).

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).


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