Citation Nr: 1306095 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-36 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right ear hearing loss, to include as due to otitis externa. 2. Entitlement to service connection for left ear hearing loss, to include as due to otitis media. 3. Entitlement to service connection for residuals of left ear otitis media and right ear otitis externa. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2011, the Veteran testified at a hearing at the RO before a local hearing officer. In October 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings have been included in the Veteran's VA claims folder. The Board remanded the claim for further development in a January 2012 decision. 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 seeks service connection for bilateral hearing loss claiming that his current hearing loss was caused or permanently aggravated by exposure to artillery fire and other excessive noise during service and/or was due to otitis media and otitis externa that he suffered during service. He also seeks service connection for residuals of right ear otitis externa and left ear otitis media. The Board remanded the Veteran's claim in January 2012 for an examination by an audiologist who was to provide opinions as to whether the Veteran's pre-existing right ear hearing loss was permanently increased in severity during active duty service, and whether the Veteran's left ear hearing loss began in or is related to service. In making the opinions, the examiner was to presume that the Veteran was exposed to excessive noise during active duty service. The record includes a March 2012 VA audiological examination report that notes the Veteran has bilateral sensorineural hearing loss and that although the Veteran had pre-existing right ear hearing loss upon entrance onto active duty, it is less likely as not that right ear hearing loss was permanently increased in severity during active service. The examiner also determined that it was less likely than not that current left ear hearing loss began in or is related to active service in the absence of clinical or research evidence supportive of delayed onset hearing loss due to noise exposure or acoustic trauma that occurred weeks, months or years after exposure. The examiner did not address whether there was hearing loss attributable to right ear otitis externa or left ear hearing loss attributable to otitis media. In addition, the medical evidence does not indicate whether there are residuals of otitis externa or otitis media currently manifested and if so, whether it is at least as likely as not that they are related to the Veteran's service. Finally, it is noted that once the test results on the induction examination are translated to ANSI from ASA, the pure tone threshold at 500 Hz on the left is 30. In this regard, the Court of Appeals for Veterans Claims has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, this level of loss does not meet the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385 (2012). Accordingly, on remand, the examiner should address whether it is clear and unmistakable that the Veteran had pre-existing hearing loss on the left side, and, if so, whether it is clear and unmistakable that any increase during service was due to the natural progress of the disease. Finally, although VA received an April 2008 notice from the Social Security Administration (SSA) that medical records pertaining to the Veteran in SSA custody had been destroyed, VA did not provide notice to the Veteran regarding their availability as required by 38 C.F.R. § 3.159(e) (2012). In addition, the Veteran should receive notice that he can provide records pertaining to hearing loss, otitis media or otitis externa that are dated after his discharge from service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Pursuant to 38 C.F.R. § 3.159(e) (2012), contact the Veteran in writing and inform him that medical records held by SSA were destroyed. The AMC must also briefly explain the efforts that the AMC made to obtain those records; describe any further action to be taken by the AMC with respect to the claim; and inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Inform the Veteran that he should submit or identify any records (not already of record) pertaining to hearing tests, otitis media or otitis externa that were created after discharge from service. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After completion of the step above, include any new records in the Veteran's VA claims folder and provide the Veteran's claims folder to an appropriate examiner. The examiner should determine whether the Veteran currently manifests right ear otitis externa or left ear otitis media or any residuals thereof. If so, the examiner should provide an opinion whether it is at least as likely as not (a probability of 50 percent or greater) that any such disorder is related to his active duty service to include episodes of otitis externa and otitis media therein. 4. After completion of the steps above, provide the Veteran's VA claims folder to an appropriate audiological examiner for provision of the following opinions. The examiner should review the claims folder and indicate in the examination report that this was accomplished. The January 1953 preinduction examination shows that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5(20) 10 (20) 10 (20) 70 (75) LEFT 15 (30) 10 (20) 10 (20) 10 (15) NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. a. The examiner should provide an opinion whether it is clear and unmistakable (obvious, manifest, and undebatable) that left ear hearing loss pre-existed active service. Please provide a complete explanation for the opinion. b. If so, please provide an opinion as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing left ear hearing loss WAS NOT aggravated (i.e., permanently worsened) during service to include as due to otitis media of the left ear during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. c. If a response above is negative, is it at least as likely as not (a probability of 50 percent or greater) that current left ear hearing loss began in or is related to active service to include as a result of excessive noise exposure and/or otitis media therein. Please provide a complete explanation for the opinion. d. The examiner should also address whether the right ear hearing loss noted at the time of the preinduction examination was aggravated (i.e., permanently increased in severity) during that period of service, to include as a result of otitis externa therein. Please provide a complete explanation for the opinion. e. If so, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. Please provide a complete explanation for the opinion. If the examiner determines that a new examination of the Veteran is required in order to provide the requested opinions, such an examination should be provided. 5. Following completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal is denied, prepare a supplemental statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board. 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. 2012). _________________________________________________ S. S. TOTH 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).