Citation Nr: 1304436 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-42 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in relevant part, denied entitlement to service connection for bilateral hearing loss. The Veteran testified at a videoconference hearing before the undersigned in September 2011. A transcript of that hearing is of record. 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 on his part. REMAND The Veteran contends that he developed bilateral hearing loss as a result of exposure to hazardous military noise, including noise from the repeated firing of heavy artillery weapons, during his active service. Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385 (2012). The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's service treatment records (STRs) reveals that he was found to have hearing loss of the left ear, for VA purposes, at the time of his entry into active duty. See 38 C.F.R. § 3.385 (2012). Results of audiological testing performed during his June 1966 induction examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 -10 X 30 LEFT 5 15 5 X 55 Upon separation from service, the Veteran's hearing was found to be within normal limits bilaterally. The results of that audiological evaluation were as follows, with puretone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 X 5 LEFT 0 0 5 X 5 There is no additional evidence in the Veteran's STRs pertaining to complaints of or treatment for hearing loss. The Veteran's DD Form 214 indicates that he was assigned to a howitzer field artillery battalion unit during his service in Vietnam. He has additionally provided statements from two of his battery commanders indicating that he was exposed to significant hazardous military noise through repeated firing of field artillery pieces, including howitzers. These statements additionally note the Veteran's involvement in combat as part of multiple counter offensives. His likely exposure to combat was conceded during a Joint Services Records Research Center (JSSRC) Coordinator Review. Given the Veteran's record of likely combat, the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case. These provisions create a presumption that a combat Veteran's reports of injuries sustained in combat are correct. Those provisions apply to an injury and the in-service consequences of that injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Therefore, the Board will concede the Veteran's exposure to hazardous military noise. See 38 U.S.C.A. § 1154 (West 2002). Such exposure was previously conceded by the RO during adjudication of his claim for service connection for tinnitus. In order to determine the etiology of the Veteran's claimed hearing loss, he was afforded a VA examination in April 2010. The examiner noted the Veteran's reported exposure to hazardous military noise and noted his contention that he used hearing protection in subsequent occupational and recreational settings where hazardous noise may be present. The examiner diagnosed normal hearing through 1500 Hertz, with a moderately severe to profound sensorineural hearing loss from 2000 Hertz to 8000 Hertz in the right ear, and with normal hearing through 1000 Hertz, with a moderate to profound sensorineural hearing loss from 1500 Hertz to 8000 Hertz in the left ear. The examiner provided the opinion that because the Veteran's separation examination revealed normal hearing in both ears; it was less likely as not that his hearing loss was the result of hazardous military noise exposure. The examiner did not provide reasons why the normal examination at separation precluded a finding that the current hearing loss was related to the in-service noise exposure. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Veteran testified during his September 2011 hearing that he received annual hearing tests through his employer, CSX. He additionally indicated that CSX provided him with a letter indicating that his hearing loss was not due to his work on the railroad. He further testified that he was seen by a Dr. George White in the 1980's regarding a problem involving water in his ears. It appears that these identified records have not yet been associated with the claims file. Thus, on remand, reasonable efforts should be made to obtain all relevant private treatment records identified by the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete authorization for VA to obtain records his hearing examinations provided by CSX, the letter telling him that his hearing loss was unrelated to his work; and records of his treatment by Dr. White, and from any other identified provider that his treated his hearing loss) on his behalf. Tell the Veteran that he should submit copies of any of the relevant treatment records in his possession, and that he may obtain and submit the records himself. If any requested records cannot be obtained; advise the Veteran of that fact; of the efforts made to obtain the records; and of any further actions that will be taken with regard to his claim. 2. Thereafter, schedule the Veteran for a new VA audiological examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right ear hearing loss had its onset during active service, or is related to any in-service disease, event, or injury, to include conceded hazardous military noise exposure. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran preexisting left ear hearing loss, as noted on his June 1966 induction examination, underwent an increase in severity, beyond natural progression, during active service. In providing these opinions, the examiner should accept that the Veteran had significant in-service noise exposure serving in an artillery unit and in combat. The examiner must also discuss the likelihood that the Veteran's hearing loss is due to in-service noise exposure on a delayed or latent onset theory of causation. 4. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. 5. If his service connection claim remains denied, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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. See 38 C.F.R. § 20.1100(b) (2012).