Citation Nr: 1036734	
Decision Date: 09/28/10    Archive Date: 10/05/10

DOCKET NO.  09-15 202A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric 
disorder.  

2.  Entitlement to service connection for a hearing loss 
disability.  


REPRESENTATION

Appellant represented by:	Kenneth LaVan, Attorney at Law


ATTORNEY FOR THE BOARD

C. R. Olson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1980 to November 
1981.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from an October 2008 decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida.  

In December 2009, the Board remanded the case to afford the 
Veteran an opportunity for a hearing.  He asked for a hearing 
before a Veterans Law Judge of the Board, at the RO.  The 
hearings were scheduled in February 2010 and April 2010 and then 
rescheduled at the Veteran's request.  A Board hearing was re-
scheduled for June 15, 2010.  A report dated June 8, 2010 shows 
the Veteran called to reschedule his June 2010 hearing.  No 
reason was recorded.  The Veteran did not appear for the 
scheduled hearing.  An appellant may request a change in the 
hearing date up to two weeks prior to the scheduled date of the 
hearing if good cause is shown.  Such request must be in writing 
and must explain why a new hearing date is necessary.  In this 
case, even though the Veteran is represented by an attorney, the 
request for postponement did not comply with the requirements of 
the regulation.  It was not timely, not in writing, and did not 
assert any good cause.  Under these circumstances, the Board must 
proceed as if the request for a hearing had been withdrawn.  
38 C.F.R. § 20.704(c), (d) (2009).  

The issue of entitlement to service-connection for an acquired 
psychiatric disorder is addressed in the REMAND portion of the 
decision below and is REMANDED to the VARO.  


FINDINGS OF FACT

1.  The Veteran had a prolonged infection of both ears during 
service.  

2.  Audiometric examination showed an increased hearing loss in 
both ears following the infection.  

3.  There is no clear and unmistakable evidence to rebut the 
presumption of aggravation.  

4.  The Veteran has a bilateral hearing loss disability that 
increased in severity during his active service.  


CONCLUSION OF LAW

A bilateral hearing loss disability was aggravated during the 
Veteran's active service.  38 U.S.C.A. §§ 101(16), 1131, 1153, 
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.385 
(2009).   


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  In November 2007, 
prior to the initial adjudication of his claims, the RO provided 
the Veteran with a letter explaining to him the type of evidence 
necessary to substantiate his claims, as well as an explanation 
of what evidence was to be provided by him and what evidence the 
VA would attempt to obtain on his behalf.  This complied with the 
requirements of VCAA.  Further, for the issue being decided here, 
the Board is granting in full the benefits sought on appeal.  So, 
any error that might have been committed with respect to either 
the duty to notify or the duty to assist was harmless and will 
not be further discussed.  

Service-Connection Criteria

In order to establish service connection, three elements must be 
established.  There must be medical evidence of a current 
disability; medical, or in certain circumstances, lay evidence of 
in-service incurrence or aggravation of a disease or injury; and 
competent evidence of a nexus between the claimed in-service 
disease or injury and the current disability.  See 38 U.S.C.A. 
§§ 101(16), 1131 (West 2002); 38 C.F.R. § 3.303 (2009); see also 
Hickson v. West, 12 Vet. App. 247, 253 (1999).

A preexisting injury or disease will be considered to have been 
aggravated by active service where there is an increase in 
disability during service, unless there is a specific finding 
that the increase in disability is due to the natural progress of 
the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).   

Clear and unmistakable evidence (obvious or manifest) is required 
to rebut the presumption of aggravation where the preservice 
disability underwent an increase in severity during service.  
This includes medical facts and principles which may be 
considered to determine whether the increase is due to the 
natural progress of the condition.  Aggravation may not be 
conceded where the disability under went no increase in severity 
during service on the basis of all the evidence of record 
pertaining to the manifestations of the disability prior to, 
during and subsequent to service.  38 C.F.R. § 3.306(b).  

What constitutes a hearing loss disability is defined by 
regulation.  For the 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.  38 C.F.R. § 3.385 (2009).  

Discussion

The Board initially notes that the Veteran currently meets the 
definition of a bilateral hearing loss disability.  On the 
authorized VA audiologic evaluation in June 2008, pure tone 
thresholds, in decibels, were as follows:






HERTZ




500
1000
2000
3000
4000
Average
RIGHT
20
10
15
35
70
30
LEFT
15
20
15
55
80
37

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and of 88 percent in the left ear.  The 
decibel losses a 4000 Hertz in each ear meet the definition of a 
hearing loss disability for VA compensation purposes.  

Turning to the question of whether the disability was incurred or 
aggravated in service, the service treatment records are 
informative.  

The report of the July 9, 1980 enlistment examination shows the 
Veteran's ears and drums were normal.  Audiologic evaluation 
showed pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
5
5
0
15
25
60
LEFT
5
5
10
10
35
60

The Veteran was found to be qualified for service.  

Another audiometric examination was conducted on July 30, 1980.  
Pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
15
5
5
5
30
45
LEFT
10
5
15
10
35
70

The Veteran was seen by an audiologist in mid August 1980.  Pure 
tone thresholds, in decibels, were as follows:




HERTZ





500
1000
2000
3000
4000
6000
8000
RIGHT
20
20
10
15
35
45
40
LEFT
5
5
10
10
35
65
40

The diagnosis was a bilateral high frequency sensorineural 
hearing loss, more severe in the left ear at 6000 Hertz.  It was 
concluded that the Veteran met enlistment standards.  It was 
recommended that the Veteran wear ear protection when in 
hazardous noise.  

Later in August 1980, the above findings were used in an 
examination for submarine duty.  The Veteran was considered to be 
disqualified for that assignment by his bilateral hearing loss.  

In October 1980, the Veteran complained of motion sickness and a 
right ear ache.  Examination disclosed redness and inflammation 
of the ear canal outside of the tympanic membrane.  The 
impression was otitis externa and a history of hearing loss in 
both ears.  Medication was recommended.  In early November 1980, 
the Veteran still complained of ear aches, more pronounced on the 
right than on the left.  Examination revealed inflammation and 
redness of the right external ear canal, resolving.  The left ear 
canal was clear.  Medication was continued.  Several days later, 
he was seen again and the assessment was a fungal infection, 
bilateral, serous otitis.  In mid-December 1980, The Veteran had 
unresolved symptoms of pain primarily in the right ear and 
secondarily in the left ear.   The assessment was a bilateral 
fungal infection, unresolved.  On further examination, the right 
ear was described as having a dull, wet, boggy appearance.  The 
angle of light reflex was poor.  There was pain just inferior to 
the mastoid.  The left ear was red and the light reflex was poor.  
The tympanic membrane was cloudy.  The assessment was serous 
otitis media and otitis externa in both ears.  Medication was 
recommended.  

In August 1981, the Veteran complained of having earaches and 
headaches, periodically, since December 1980.  Initial 
examination showed the ear canals to be clear.  He was referred 
to the ear, nose, and throat (ENT) clinic, where he was seen 
later in August 1981.  The Veteran restated his complaint of 
headaches and ear pain for the past 8 months.  The ear canals 
were within normal limits, having scant wax.  The tympanic 
membranes showed a healed perforation.  There was no clinical 
evidence of middle ear disease.  

In early September 1981, the Veteran complained of nasal 
congestion and dizziness.  The ear canals were clear and the 
tympanic membranes had a positive reflection.  The throat had 
some post nasal drainage and the diagnosis was sinus congestion.  

The report of the November 1981 examination for separation from 
service shows pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
20
15
10
15
35
40
LEFT
30
10
10
15
45
65

Discussion

When the Veteran was examined for service in early July 1980, 
when he was examined shortly after entering service in late July 
1980, and when examined in August 1980, both ears consistently 
did not meet the criteria for a disability.  The service 
treatment records show that for several months in the fall of 
1980, the Veteran was troubled by a persistent infection in both 
ears.  The next audiometric testing was on separation examination 
in November 1981.  That examination showed the left ear met the 
definition for a hearing loss disability.  That is, for the left 
ear, initial audiometric testing showed a hearing loss that was 
not disabling, there was a prolonged ear infection, and 
subsequent audiometric testing showed a hearing loss that met the 
definition of a hearing disability.  This is clearly an increase 
in disability.  There is no clear and unmistakable evidence to 
rebut the presumption of aggravation.  Thus, the Board concludes 
that the Veteran's left ear hearing loss was aggravated during 
his active service.  

The hearing loss in the right ear also increased in severity 
after the Veteran's bout with the prolonged infection in the fall 
of 1980.  While it did not increase to the extent that it met the 
definition of disability during service, the United States Court 
of Appeals for Veterans Claims (Court) has held that is not 
dispositive.  In Hensley v. Brown, 5 Vet. App. 155, 159 (1993), 
the Court quoted an explanation by the VA General Counsel:  
[W]here the regulatory threshold requirements for 
hearing disability are not met until several years 
after separation from service, the record must include 
evidence of exposure to disease or injury in service 
that would adversely affect the auditory system and 
post-service test results meeting the criteria of 38 
C.F.R. § 3.385.  VA rating authorities must evaluate 
available testimony, clinical data, diagnoses, and any 
medical opinions relevant to the issue.  See 38 C.F.R. 
§ 3.303 (principles of service connection)....  For 
example, if the record shows (a) acoustic trauma due 
to significant noise exposure in service and 
audiometric test results reflecting an upward shift in 
tested thresholds in service, though still not meeting 
the requirements for a "disability" under 38 C.F.R. 
§ 3.385, and (b) post-service audiometric testing 
produces findings meeting the requirements of 38 
C.F.R. § 3.385, rating authorities must consider 
whether there is a medically sound basis to attribute 
the post-service findings to the injury in service, or 
whether they are more properly attributable to 
intercurrent causes.  

In this case, we have a prolonged right ear infection followed by 
an upward shift in test thresholds during service and a current 
hearing loss that meets the definition of disability under 
section 3.385.  Given the prolonged infection, which primarily 
affected the right ear, there is simply no way that the increase 
in severity of the hearing loss during service could be ascribed 
to the natural progress of the disorder.  Consequently, we must 
conclude that the right ear hearing loss was also aggravated 
during the Veteran's active service and it cannot be dissociated 
from the current disability.  



ORDER

Service connection for a bilateral hearing loss disability is 
granted.  


REMAND

The Veteran contends that he has a psychiatric disorder because 
everyone hated him in service and he was depressed.  The service 
personnel records show that the Veteran was discharged for 
unsuitability.  So, it does appear that his superiors were not 
satisfied with him.  Whether this was the cause of any current 
psychiatric disability is a medical question for which a medical 
opinion would be helpful.  There was a VA psychiatric 
consultation in June 2007.  However, the examiner did not express 
an opinion as to the likelihood of the diagnosis being related to 
service.  Consequently, the Board remands the claim for service-
connection for a psychiatric disorder for a medical opinion based 
on a current examination of the Veteran.  

Accordingly, the claim for service connection for an acquired 
psychiatric disorder is REMANDED to the RO for the following 
action:

1.  The Veteran should be scheduled for a 
VA mental examination.  The claims folder 
should be made available to the examiner 
for review in conjunction with the 
examination.  Any tests or studies need to 
respond to the following should be done.  
The examiner should respond to the 
following questions:

a.  What are the Veteran's correct current 
psychiatric diagnoses?  Please explain.  

b.  Please explain why the Veteran does or 
does not have a bipolar disorder.  

c.  Please explain why the Veteran does or 
does not have PTSD.  

d.  Is it at least as likely as not that 
any psychiatric disability the Veteran may 
have began in service or increased in 
severity during service?  Please explain.  

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

2.  Thereafter, the RO should readjudicate 
this claim in light of any evidence added to 
the record.  If any benefit sought on appeal 
remains denied, the appellant and his 
representative should be provided a 
supplemental statement of the case (SSOC).  
An appropriate period of time should be 
allowed for response.

Subsequently, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate outcome 
of this case.  The appellant need take no action unless otherwise 
notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters 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.A. 
§§ 5109B, 7112 (West Supp. 2010).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals






 Department of Veterans Affairs