Citation Nr: 1303969 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 09-13 686 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the RO which denied service connection for bilateral defective hearing. A hearing at the RO before the undersigned member of the Board was held in October 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that her hearing loss was caused by exposure to acoustic trauma from musical instruments as a member of a drill team during service or, in the alternative, was caused by antibiotic medication she was given for an upper respiratory infection (URI) in service. The Veteran testified that she had no hearing problems prior to service, and that she first noticed a hearing loss while hospitalized for an URI in service in August 1968. The Veteran reported that she just learned to live with it until it became a significant impairment many years after service. Historically, the Veteran's service enlistment examination showed that she had bilateral defective hearing - NCD (not considered disabling) at the time she was examined and accepted for military service in December 1967. The service treatment records (STRs) showed that the Veteran was hospitalized for an upper respiratory infection (URI) for three days in August 1968, and was presumably treated with antibiotics. The STRs showed that the Veteran was seen at the EENT (eye, ear, nose and throat) clinic for an itchy throat in April 1970, and that her ears were normal on examination at that time. At the time of her service separation examination in December 1970, the Veteran specifically denied any hearing problems and an audiological examination showed that her hearing was within normal limits. In fact, the audiometric findings for both ears were significantly improved at all frequencies when compared to the audiometric findings at the time of her enlistment examination, and did not meet the criteria for a hearing loss for VA purposes or under the holding in Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The first evidence of any treatment for a hearing problem after service was in 1997. A private audiological examination report dated in February 1997, noted that the Veteran had a history of noise exposure from industrial work. The Veteran denied any tinnitus, otalgia or vertigo, and reported a history of respiratory problems in the 1980's with hearing loss. The diagnoses included normal Type A tympanograms, and mild to moderate sensorineural hearing loss, bilaterally. In a letter received in November 2008, a private audiologist reported that, based on the Veteran's "history of antibiotic treatment, ototoxicity cannot be ruled out as a contributing factor" for her sensorineural hearing loss. In this case, the question to be resolved is whether the Veteran's pre-existing hearing loss - which was noted on her service enlistment examination in 1967, was aggravated by or otherwise worsened beyond the natural progression of the disease process in service. Although the current evidence of record showed that not only was there no objective evidence of decreased hearing acuity during service, but that the audiometric findings at separation were significantly better than when the Veteran entered service. However, given the private medical statement that ototoxicity from antibiotics used to treat her URI in service could not be ruled out as a contributing factor for the Veteran's current sensorineural hearing loss, a VA examination is necessary to address this matter. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine whether her pre-existing hearing loss was aggravated by service. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner should respond to the following: a) Is it at least as likely as not that the Veteran's pre-existing hearing loss underwent an increase in severity in service (i.e., a permanent worsening of the underlying disease as distinguished from a temporary or intermittent flare-up)? b) If so, was the increase clearly and unmistakably due to the natural progress of the disease process OR was the increase due to aggravation of the pre-existing disability by the use of antibiotics in service? The examiner should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. It would be helpful if the examiner included a discussion of the expected effects of antibiotics on the Veteran's pre-existing hearing loss in service. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the examiner for completion of the opinion). Notes: The term clear and unmistakable means that the evidence cannot be misinterpreted and misunderstood, i.e., that it is undebatable. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 it. The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 2. Following completion of the foregoing, the AMC must review the claims file and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. See 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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. 2012). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).