Citation Nr: 1315418 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-03 582A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from January 1988 to January 1992 and from June 18, 1999, to July 31, 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In his February 2009, the Veteran requested the opportunity to testify before a Veterans Law Judge of the Board via video-conference. As such, he was scheduled for a Board video-conference hearing in October 2010 but, he failed to attend his scheduled hearing. Therefore, the Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment records dated through June 2012 and VA examination reports, to include an August 2012 ear conditions examination, that have been associated with the claims file since the issuance of the most recent supplemental statement of the case in March 2010. While such evidence is relevant to the claims before the Board and the Veteran has not waived agency of original jurisdiction (AOJ) consideration of it, as his claim for service connection for left ear hearing loss is granted herein, no prejudice results to him in the Board considering such evidence. Furthermore, as his initial rating claim is being remanded, the AOJ will have an opportunity to review the newly associated documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The issue of entitlement to an initial compensable rating for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Left ear hearing loss is etiologically related to noise exposure during active military service. CONCLUSION OF LAW Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for left ear hearing loss herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran was exposed to noise during his military service. In this regard, he reported that he was on the firing range without hearing protection and was within 50 to 75 feet from aircraft with engines running. The Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Such contentions are also consistent with the Veteran's documented service with security forces in the United States Air Force. Moreover, he has already been granted service connection for tinnitus and right ear hearing loss based on such acknowledged in-service noise exposure. Additionally, while numerous VA and private audiological evaluations failed to reveal a left ear hearing loss for VA purposes prior to August 2012, the Board finds that the Veteran has a current left ear hearing loss disability that meets VA's criteria. In this regard, at an August 2012 VA ear conditions examination, the Veteran's puretone thresholds for his left ear were 30 decibels at 500 Hertz, 35 decibels at 1000 Hertz, 30 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 30 decibels at 4000 Hertz. Speech recognition using the Maryland CNC test was 100 percent in the left ear. As the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, the Veteran has a left ear hearing loss disability for VA purposes. Moreover, a March 2008 VA examiner opined that the Veteran's hearing loss was at least as likely as not due to his military occupational specialty in security forces which exposed him to hazardous noise in the administration of his duties because hearing loss occurs as a direct result of exposure to high intensity sound from weapons fire. Likewise, a July 2009 record from a private audiologist indicates that at least some of the Veteran's hearing loss is the result of his exposure to hazardous noise while in the service and an August 2009 private opinion from Dr. Ellis reflects that the Veteran had high frequency hearing loss in both ears that was consistent with noise induced hearing loss. Moreover, the August 2012 VA examiner determined that the Veteran had a bilateral sensorineural hearing loss that was at least as likely as not related to his military noise exposure as it developed during the military. Therefore, based on the foregoing opinions, the Board finds that the Veteran's left ear hearing loss is etiologically related to noise exposure during active military service. Consequently, service connection for such disability is warranted. ORDER Service connection for left ear hearing loss is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's initial rating claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As an initial matter, the Board notes that VA regulations governing the evaluation of hearing loss provides that left and right ear hearing loss is rated together. As the Board has herein granted service connection for left ear hearing loss, a remand is necessary in order for the AOJ to implement the award and readjudicate the Veteran's claim for an initial compensable rating for right ear hearing loss. Moreover, as indicated in the Introduction, additional VA treatment records as well as an August 2012 VA ear conditions examination report were added to the record since the March 2010 supplemental statement of the case. As such are relevant to the evaluation of the Veteran's hearing loss, a remand is necessary in order for the AOJ to consider such evidence and issue a supplemental statement of the case. 38 C.F.R. § 19.31. Finally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his hearing loss. Thereafter, all identified records, to include those from the VA facility in Oklahoma City, Oklahoma, dated from June 2012 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his hearing loss. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records from VA facility in Oklahoma City dated from June 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, implementing the Board's award of service connection for left ear hearing loss, and conducting any other necessary development, the Veteran's initial rating claim should be readjudicated based on the entirety of the evidence, to include the evidence received since the issuance of the March 2010 supplemental statement of the case with specific attention to the August 2012 VA ear conditions examination report. 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 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs