Citation Nr: 1309901 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-32 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1967. He served in Vietnam and was awarded the combat infantry badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO denied entitlement to service connection for bilateral hearing loss disability. The RO also granted service connection for prostate cancer and assigned a 20 percent rating. The Veteran timely appealed the initial rating assigned and requested a 40 percent rating. The RO granted the requested 40 percent rating and this appears to be a full grant of the benefit sought on appeal on this issue. The Board will therefore not address this issue further. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). 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 Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has met the current disability and in-service injury elements. On the September 2008 VA examination, the audiometric scores indicated that there were decibel scores greater than 40 decibels and Maryland CNC speech recognition scores below 94 percent. This establishes current bilateral hearing loss disability. 38 C.F.R. § 3.385 (2012). The Veteran was diagnosed with bilateral sensorineural hearing loss. In addition, the Veteran has indicated in his written statements that he suffered acoustic trauma while serving as a heavy vehicle driver during combat in Vietnam. As these statements are consistent with the circumstances of the Veteran's service (as shown by the fact that his DD Form 214 indicates that his military occupation specialty was heavy vehicle driver and he was awarded the CIB), the combat presumption in 38 U.S.C.A. § 1154(b) (West 2002) requires that the Board accept that he suffered acoustic trauma. As the Veteran has established the current disability and in-service injury elements, the only remaining question is whether there is nexus between current disability and in-service acoustic trauma or, alternatively, if sensorineural hearing loss is considered a chronic disease, the Veteran can establish entitlement to service connection by a showing of this chronic disease in service (or manifestation to a compensable degree within the one year presumptive period) or via continuity of symptomatology. Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). See also VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)"). Moreover, in determining the question of whether the Veteran suffered permanent hearing loss while on active duty, the Board must also apply the combat presumption. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Based on the above principles, the September 2008 VA audiological examination is inadequate for rating purposes for several reasons. First, the only rationale offered by the VA audiologist was, "Due to documented normal hearing sensitivity at the time of separation from the military, it is the opinion of this examiner that the Veteran's hearing loss is less likely as not related to military service." However, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). While medical reports must be read as a whole and in the context of the evidence of record, Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012), here the examiner's focus on the separation examination report without addressing when the Veteran first experienced symptoms of hearing loss does not allow the Board to conclude that he considered the Veteran's statements. In addition, the separation physical examination was conducted in August 1967, at a time when ASA units rather than ISO units were used. On the August 1967 separation audiological examination, pure tone thresholds, in decibels, were as follows, with currently used ISO units in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 5(15) 5(15) N/A 10(15) LEFT 10(25) 5(15) 0(15) N/A 5(10) The Board cannot make its own medical judgments, but the Court has held that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)). Thus, pursuant to the Court's finding there was an abnormal reading at 500 Hertz which was apparently not considered at the time of the earlier examination. As the September 2008 VA examination was inadequate for rating purposes, a new examination is required. The examiner should be instructed to ask the Veteran when he first observed or was told by lay witnesses of a decrease in hearing ability and to answer the question of whether current bilateral hearing loss disability is related to in-service acoustic trauma by considering the Veteran's response to this question as well as each of the three service audiometric test results (November 1965 induction examination; March 1966 H/Rec examination, and August 1967 separation examination), keeping in mind that the audiometric test scores were in ASA rather than ISO units and must be converted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the etiology of his bilateral hearing loss disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. In conducting the examination, the examiner should ask the Veteran when he first became aware of decreased hearing ability. After reviewing the claims file and examining the Veteran, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss disability is related to his in-service acoustic trauma. In answering the above question, the examiner should consider and reference the Veteran's statements as well as each of the three service audiometric test results (November 1965 induction examination; March 1966 H/Rec examination, and August 1967 separation examination), keeping in mind that the audiometric test scores were in ASA rather than ISO units and must be converted. The examiner should address the score of 10 decibels at 500 Hertz in the left ear on the August 1967 separation examination, converted to 25 decibels in ISO units, which at least suggests abnormal hearing under the Court's decision in Hensley and the medical literature cited therein. The absence of hearing loss disability at separation should not be the sole basis for the opinion, without fuller explanation. A complete rationale should accompany any opinion provided. The examiner is advised that, as a combat veteran, the Veteran's statements as to acoustic trauma and any statements as to in-service hearing loss should be assumed to be accurate. 2. After the above development has been completed, readjudicate the claim for entitlement to service connection for bilateral hearing loss disability. If the benefit sought on appeal remains denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran 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). _________________________________________________ MICHAEL D. LYON 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).