Citation Nr: 1320413 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-27 141 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. His primary military duties were as a light weapons infantryman. He had service in the Republic of Vietnam, where his awards and decorations included the Combat Action Ribbon. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the RO. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for tinnitus. During the pendency of the appeal, the RO, in a November 2012 rating decision, granted service connection for tinnitus, evaluated as 10 percent disabling. The Veteran was notified of this decision and did not file a notice of disagreement. Therefore, the issue of any higher evaluation for this disability is not presently in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). After reviewing the record, the Board finds that additional development of the evidence is warranted prior to further consideration by the Board. Accordingly, 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 seeks entitlement to service connection for a hearing loss disability, primarily as the result of acoustic trauma sustained in combat in the Republic of Vietnam. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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). Special considerations attend the cases of combat veterans. 38 U.S.C.A. § 1154(b) (West 2002). For any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case are to be recorded in full. Section 1154(b) does not, however, create a statutory presumption that combat veteran's alleged disease or injury is service-connected. The veteran must still meet his evidentiary burden with respect to service connection. Section 1154(b) sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the veteran has proffered satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. (Satisfactory lay or other evidence under 38 U.S.C.A. § 1154(b) means credible evidence. Caluza. VA is not required to accept statements or testimony that is inherently incredible. See Samuels v. West, 11 Vet. App. 433 (1998). Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." The statute provides that if these two inquiries are met, VA shall accept the veteran's evidence as sufficient proof of service- connection, even if no official record of such incurrence exists. Thus, if a veteran satisfies both of these inquiries mandated by the statute, a factual presumption arises that the alleged injury or disease is service-connected. Section 1154(b) makes the resolution of these inquiries very favorable to the veteran by providing that the VA shall resolve every reasonable doubt in favor of the veteran. The presumption is, however, rebuttable. The VA may rebut the presumption by presenting clear and convincing evidence to the contrary. Thus, as the third step in the analysis, it must be determined whether the government has met its burden of rebutting the presumption of service-connection by clear and convincing evidence to the contrary. Collette v. Brown, 82 F. 3d 389, 392-93 (1996). The reports of the Veteran's VA audiologic examinations in January 2010 and October 2012 show that the Veteran has a current hearing loss disability for VA purposes. The Veteran's Combat Infantryman Badge is proof of the Veteran's participation in combat. As such, the Board finds that the Veteran sustained acoustic trauma from the sound of small arms, mortar, and artillery fire. Such trauma is entirely consistent with the circumstances, conditions, or hardships of such service. Thus, a factual presumption arises that the hearing loss disability is service-connected. The factual presumption notwithstanding, the report of the January 2010 VA examination found that it was less likely than not that the Veteran's hearing loss disability was related to service. The VA examiner based her conclusion largely on the fact that the Veteran had not demonstrated a hearing loss in service or at the time of his service separation examination that met VA criteria. However, the failure to meet the VA criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2012); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Therefore, in October 2012, the Veteran was reexamined by VA to determine the nature and etiology of any hearing loss disability found to be present. Although the examination confirmed the presence of a hearing loss disability for VA purposes, the Veteran stated that without resorting to speculation, he was unable to render an opinion as to whether it was at least as likely as not (at least a 50/50 chance) that such hearing loss disability was related to service. In so saying, the VA examiner found the report of the Veteran's service separation audiogram to be illegible. Therefore, he stated that he was unable to determine whether the Veteran had a hearing loss or if there had been a significant threshold shift since the Veteran's audiogram administered at the time of his April 1967 service entrance examination. Inasmuch as VA now acknowledges that the Veteran sustained acoustic trauma during combat in service, an additional audiologic examination is warranted to determine if the Veteran's current hearing loss disability is related to service. Accordingly, the case is remanded for the following actions: 1. Request that the Veteran provide the names and addresses of all health care providers, VA and non-VA, who have treated him for a hearing loss disability. Then, the RO/AMC must request those records directly from the health care provider(s) identified by the Veteran. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the health care provider identified by the Veteran is affiliated with an agency or department of the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). If the health care provider identified by the Veteran is not affiliated with an agency or department of the federal government, and the requested records are unavailable, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(e) (2012). 2. When the actions requested in part 1 have been completed, schedule the Veteran for an audiologic examination by an EXAMINER WHO HAS NOT SEEN HIM PREVIOUSLY. The purpose of the examination is to determine the nature and extent of any hearing loss disability found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a hearing loss disability(ies) for VA purposes is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must also render an opinion as to whether it is at least as likely as not that the Veteran's hearing loss disability is related to service. In so doing, the examiner must consider the fact that the Board acknowledges the Veteran's acoustic trauma in combat. The examiner must also take care to consider the Veteran's contentions with respect to the time that that he began to have difficulty hearing and whether such difficulty has been present since service. In any event, the VA examiner must state how and why he or she reached the opinion they did. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). If the Veteran fails to report for a scheduled VA examination, a copy of the notice informing him of the date, time, and location of the examination must be associated with the claims folder. If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 3. When the actions requested in parts 1 and 2 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a hearing loss disability, keeping in mind that there must be clear and convincing evidence to refute the presumption of service connection for this combat veteran. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). _________________________________________________ JOHN Z. JONES 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).