Citation Nr: 1312950 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-06 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This issue was remanded by the Board in November 2011 for additional development after it was determined that new and material evidence had been received to reopen the claim. Specifically, the Board indicated that the issue of service connection for left ear hearing loss must be adjudicated on the merits, as evidence pertinent to the claim was associated with the file following the most recent supplemental statement of the case issued in July 2009. However, that action was not completed. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board regrets additional delay, the issue of entitlement to service connection for left ear hearing loss must be remanded once again for further development. The Veteran claims entitlement to service connection for left ear hearing loss. He contends that maintenance of photographic systems on reconnaissance fighter aircraft, in addition to exposure to small arms fire, mortars, and helicopter engines, resulted in the currently diagnosed sensorineural hearing loss. To prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of the disease during service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss disability is defined by regulation. 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 threshold for normal hearing is from 0 to 20 decibels, and a higher threshold level indicates some degree of hearing loss. The provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran was first afforded a VA audiological evaluation in April 2006. At that time, it was noted that the Veteran's hearing was normal on enlistment in 1963, and that his 1967 separation examination indicated hearing within normal limits, bilaterally. On examination, puretone testing revealed sensorineural hearing loss, bilaterally. The examiner opined that it was less likely than not that the Veteran's current hearing loss was related to service, as hearing was normal upon separation. He was afforded an additional VA examination in June 2008. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 45 70 70 70 Speech recognition was 80. The examiner opined that, because the Veteran's separation examination demonstrated normal hearing, his hearing impairment in the left ear must be related to a hearing impairment which occurred after discharge. Based solely on the fact that the Veteran's hearing did not meet the criteria for hearing loss per 38 C.F.R. § 3.385 at the time of separation, each VA examiner stated that it was not as likely as not that left ear hearing loss resulted from in-service acoustic trauma. Even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Therefore, the opinion are in direct contrast to legal precedent. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board remanded the Veteran's reopened claim in November 2011 for adjudication of the issue of service connection. However, following a search of the voluminous claims file, in addition to the Virtual VA electronic records system, neither a rating decision nor supplemental statement of the case is of record that readjudicates that claim. As evidence has been received subsequent to the most recent supplemental statement of the case in July 2009, deemed by the Board to be new and material in November 2011, that issue must be remanded again to complete the development. A remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 19.9 (2012). VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Considering the Veteran's statements in support of his claim, and VA treatment reports of record which note that the Veteran has a current diagnosis of left hearing loss, the Veteran's claim for service connection should be remanded for an additional VA examination so as to determine whether his currently-diagnosed left ear hearing loss is etiologically-related to his period of active service. The examiner must not rely solely on the fact that the Veteran's hearing was within normal limits for VA purposes at the time of separation from service when forming an opinion. Accordingly, these issues are REMANDED for the following actions: 1. Schedule a VA audiological examination to assess the nature and etiology of the Veteran's currently-diagnosed left ear hearing loss. The examiner must review the claims file and must note that review in the report. Following a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that left ear hearing loss originated during active service or within one year following separation from service, or is otherwise related to active service. The examiner should provide a clear rationale and basis for all opinions expressed. Consideration must be given to the Veteran's assertion of continuity of symptomatology. The examiner must not rely on the fact that the Veteran's hearing was within normal limits at the time of separation as the basis for any opinion provided. If it is the opinion of the examiner that the Veteran's current left ear hearing disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why the in-service noise exposure is not at least a contributing factor to any current left ear hearing loss. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim 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). The Veteran is advised that failure to appear for an examination without good cause could adversely affect his appeal. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).