Citation Nr: 1311702 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-44 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from June 1978 to March 2000. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2009, the Veteran requested to reopen his claim of service connection for tinnitus. The Board observes that in a June 2008 rating decision the claim of service connection for tinnitus was denied. The claim is referred to the RO for appropriate action. 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 A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012) Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence on in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity of symptomatology. If the condition noted during service (or within the presumptive period) is not shown to be chronic or where the diagnosis of chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, slip op. at 13-14 (Fed. Cir. Feb. 21, 2013) (overruling Savage v. Gover, 10 Vet. App. 488 (1997)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. 38 C.F.R. §3.385 (2012). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In the Veteran's original claim filed in August 2008, he attributed his bilateral hearing loss to 21 years of service in the Army where his duties in communications exposed him to acoustic trauma from generators. The Veteran's DD 214 indicates his military occupational specialty as a telecommunications operations chief for 21 years and 9 months. According to the evidence of record, the Veteran was treated at the American Ear Hearing and Audiology in November 2009. However, it is unclear whether the Veteran was diagnosed with hearing loss. In addition, VA treatment records from May 2009 indicate the Veteran complained of tinnitus and dizziness. He reported he served in the military from 1978 to 2000 with noise exposure from signal generators. He denied post-service noise exposure. An examination revealed "normal hearing acuity from 250-4000 Hz, sloping to a mild high-frequency [hearing loss] from 6000-8000 Hz [in the right ear]; and a mild high-frequency [hearing loss] at 6000 [in the left ear], with otherwise normal hearing acuity from 250-8000 Hz." The word discrimination scores were 92 percent in the right ear and 96 percent in the left ear. However, it is unclear as to whether speech recognition was conducted using the Maryland CNC test. The Board notes that the Veteran has not been afforded a VA examination for his claimed bilateral hearing loss. Such is examination, to include an opinion, is necessary in order to determine whether any current hearing loss found is related to service, including to noise exposure in service. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2012) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2012) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine (1) whether the Veteran has a current hearing loss disability for VA purposes (audiological testing should be performed showing pure tone thresholds results and the results of the Maryland CNC Test); and (2) If a current hearing loss disability is diagnosed, whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of at least 50 percent), or less likely than not (i.e., probability less than 50 percent) that such is related to the Veteran's military service, including noise exposure in service. The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished and all findings and conclusions should be set forth in a legible report. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings and lay statements. The examiner is asked to discuss the Veteran's lay statements of his military history and occupational duties, including his history of noise exposure in service. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. The RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, 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. 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). _________________________________________________ K. OSBORNE 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).