Citation Nr: 1305679 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 05-36 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which found that new and material evidence had not been submitted to reopen the Veteran's claim seeking service connection for bilateral hearing loss. In August 2008, a Travel Board hearing was held at the RO before a Veterans Law Judge; and a transcript of the hearing testimony is in the claims file. In October 2008, the Board found that new and material evidence had been submitted to reopen the Veteran's claim, and remanded the reopened issue of entitlement to service connection for bilateral hearing loss for additional development and readjudication on the merits. In May 2010, the Board issued a decision which denied service connection for bilateral hearing loss. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court issued a memorandum decision that vacated the Board's May 2010 decision and remanded the case to the Board for additional evidentiary development. During the course of this appeal, the Veterans Law Judge, who conducted the August 2008 hearing, left his employment with the Board. In a January 2012 letter, the Board asked the Veteran if he desired a new hearing. The Veteran did not respond. In July 2012, the Board remanded the claim for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran served in Vietnam as a light weapons infantryman and received the Bronze Star Medal, denoting involvement in combat. He seeks service connection for bilateral hearing loss. The VA has conceded the Veteran's exposure to acoustic trauma in service. However, there remains the question as to whether his current bilateral hearing loss was caused or aggravated by his service. First, however, it is unclear whether the Veteran currently has hearing loss that meets the criteria for a disability under 38 C.F.R. § 3.385 (2012). The requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim; thus, a Veteran may be granted service connection even though the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In that regard, such hearing loss was not shown on VA examinations conducted in July 2002, February 2005, and September 2006. Then, a June 2008 private record and a December 2009 VA examination did show such hearing loss, with hearing loss of 40 decibels at 4000 Hz in the right ear and hearing loss of 40 decibels at 3000 Hz in left ear. Then, on the most recent July 2012 VA examination, hearing loss for VA purposes was not shown. Rather, his hearing at 3000 Hz and 4000 Hz remained below 40 decibels, bilaterally, and there was no indication of three thresholds 26 decibels or greater. Nor did his speech discrimination scores meet the criteria for hearing loss. Thus, a VA examiner should provide an opinion rectifying these conflicting results. Next, the claim was previously remanded in order to comply by the October 2011 Memorandum Opinion. The July 2012 VA examiner was to take into consideration both the Veteran's in-service combat noise exposure and his report of hearing loss beginning shortly after service when determining whether his current hearing loss was related to his service. Instead, in finding that the Veteran's hearing loss was less likely than not related to his service, the examiner relied solely on the absence of hearing loss on separation from service. That opinion is inadequate because it does not meet the directions provided by the Court. Moreover, the Court has held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The case was remanded by the Court precisely because the opinions of record were inadequate and the opinion obtained subsequent to the most recent Board remand is still inadequate. Therefore, a thoroughly explained etiological opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate examination to determine the severity and etiology of the Veteran's bilateral hearing loss. All indicated tests and studies should be performed, and all pertinent symptomatology and findings must be reported. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination. a) The examiner should determine whether the Veteran suffers from bilateral hearing loss or has suffered from bilateral hearing loss at any time since January 2004 in accordance with 38 C.F.R. § 3.385, which states that hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The examiner must take into account the June 2008 and December 2009 audiometric examinations when providing the requested opinion. b) Provide an opinion as to whether it is at least as likely as not (at least a 50% probability) that any hearing loss (currently shown or shown at any time since January 2004) was incurred or aggravated during the Veteran's active service. In that regard, the examiner must consider and discuss the Veteran's conceded in-service noise exposure as a light weapons infantryman while stationed in Vietnam and that the VA concedes he was exposed to acoustic trauma in that role. The examiner must also take into account the Veteran's report that he noticed mild hearing loss several years following service. The examiner must not base his/her conclusion solely on the absence of hearing loss on separation examination. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ M. E. LARKIN 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).