Citation Nr: 1316638 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 04-31 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1959 and from February 1961 to February 1967. He had active service with the Reserves from January to April 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen claims for service connection for headaches and bilateral hearing loss. This case was previously before the Board in August 2008 and was remanded for additional development of the record. In a November 2010 determination, the Board found new and material evidence was present and reopened the claims for service connection for headaches and bilateral hearing loss. The matters were remanded for additional development and in September 2012, the Board denied the claim for service connection for headaches and that issue is no longer before the Board. As to the claim for service connection for bilateral hearing loss, the matter was remanded for additional development. 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 As noted, the Board remanded the claim for service connection for bilateral hearing loss in September 2012 directing that a VA audiologist provide a written opinion and the basis for the opinion. By the time the Veteran entered his third period of service (from January 1986 to March 1986), the evidence in the file demonstrated the Veteran had a hearing loss. It thus preexisted the 1986 period of service. The question the Board needed answered by a VA audiologist or someone with similar medical knowledge is whether the preexisting hearing loss increased in severity beyond the natural progression of the disorder during the January to April 1986 period of service. In January 2013, a VA audiologist provided a written opinion setting forth the facts that formed the basis of the opinion. Comparing the audiometric puretone threshold results from February 1985, with the results from the October 1989 test, that is, the last test results before the 1986 period of active service with the first test after service, the VA examiner noted that a worsening significant threshold shift was not seen in either ear. Therefore, the VA audiologist stated the Veteran's hearing loss was less likely as not worsened by the January to April 1986 military noise exposure. Unfortunately, and with apologies to the Veteran, the examiner used the wrong standard for determining service connection for a disability that preexisted service. Therefore, the matter must again be remanded directing the VA audiologist to offer an opinion under the correct standard. If a preexisting disorder is noted upon entry into service, the Veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).) VA's General Counsel has held that to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). In the instant case, as noted above, the first prong of rebutting the presumption of soundness has been satisfied. To fully rebut the presumption, the record must also contain clear and unmistakable evidence that the preexisting disability was not aggravated by service. The VA audiologist used the "less likely than not" standard. Thus, the opinion does not arise to the level of "clear and unmistakable" to support a finding that bilateral hearing loss was not aggravated by his 3 months of service in 1986. See Wagner, 370 F.3d at 1096. Accordingly, the case is REMANDED for the following action: 1. Arrange for the same VA audiologist who provided the January 2013 opinion, if available, to prepare an addendum opinion, and if necessary, conduct a new examination. The claims file should be made available to the examiner to review in conjunction with any necessary examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the record contains clear and unmistakable evidence that the hearing loss which preexisted the January to April 1986 period of service, had NOT increased in severity (chronic worsening of underlying condition beyond natural progression as opposed to temporary flare-up of symptoms) in service, considering the evidence, accepted medical principles pertaining to the history, manifestations, clinical course, and the character of the disability found. If another VA examination is deemed necessary, the Veteran must be advised of the importance of reporting to that examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of any notification letter advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to any scheduled examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 2. After the development requested is completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran a supplemental statement of the case and return the case 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). _________________________________________________ L. M. BARNARD Acting 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).