Citation Nr: 1317748	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  09-44 559	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


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

M. J. In, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1997 to August 2008.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Diego, California.  Jurisdiction of the case has been subsequently transferred to the RO in Roanoke, Virginia.

In his substantive appeal, the Veteran requested a hearing before the Board in Washington, D.C.  The Veteran was scheduled to testify at a Central Office hearing in April 2013, but the record reflects that he cancelled that hearing.  The Veteran's request for hearing is accordingly deemed to be withdrawn.  See 38 C.F.R. § 20.704(e) (2012).

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

The Veteran was provided a VA audiology examination in August 2008 in conjunction with the claim on appeal.  At the examination, he reported hearing loss in both ears.  He served in the Air Force for over 11 years and worked in special tactics.  He reported military noise exposure from helicopters, fixed wing aircraft, explosions, gunfire and machinery.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
30
25
LEFT
5
15
10
25
25

Speech audiometry revealed speech recognition ability of 96 percent, bilaterally, using the Maryland CNC word list.  The diagnoses were hearing loss, not disabling per 38 C.F.R. § 3.385, in the right ear; and clinically normal hearing in the left ear.  To that effect, 38 C.F.R. § 3.385 provides that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2012).

In his July 2009 notice of disagreement, however, the Veteran contended that he felt that the August 2008 VA hearing test was not conducted in a standard manner and that the hearing evaluation was not objective.  Specifically, he stated that prior to the speech recognition test, the technician gave the Veteran what he presumed to be hypothetical word pair examples to aid in understanding the format of the test, but they were the actual test answers.  He further stated that during the pure tone testing, he was asked to press the button even when he was not certain he had heard a tone.

The Veteran's service treatment records reflect that the Veteran was referred to the audiology for a comprehensive audiometry test in July 2008, with a diagnosis of sensorieunral hearing loss.  However, the results of the July 2008 audiometric tests were charted, not enumerated, and the results as charted are not clear to laypersons; thus, they cannot be interpreted by the Board.  Kelly v. Brown, 7 Vet. App. 471, 474 (1995); cf. Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise).

Based on the foregoing, the Board concludes that another VA examination is warranted to adequately decide the merits of the claim.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature and etiology of bilateral hearing loss.  The claims folder should be provided to the examiner in conjunction with the examination.  The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss is related to service, to include his exposure to hazardous noise from helicopters, fixed wing aircraft, explosions, gunfire and machinery during his 11 years of service in the Air Force.  The examiner should review the results of the audiometric tests conducted in July 2008 while the Veteran was on active duty.  Applicable law provides that service connection may be granted for a disability initially demonstrated after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.

A complete rationale must be offered for any opinion provided.

2.  The Veteran is advised of the importance of reporting to the scheduled VA 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).

3.  Thereafter, readjudicate the issue on appeal of entitlement to service connection for bilateral hearing loss.  If the benefit sought remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond.  The case should then be returned 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).



_________________________________________________
ROBERT C. SCHARNBERGER
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).