Citation Nr: 1320741	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  09-49 855	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty from November 1961 to May 1965.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In that rating decision, the RO granted service connection for tinnitus, but denied service connection for bilateral hearing loss. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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 service connection for a hearing disability claimed as the result of in-service noise exposure during his active duty from 1961 to 1965. Prior to adjudicating the claim of entitlement to service connection for bilateral hearing loss additional development is necessary. See 38 C.F.R. § 19.9 (2012).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet.App. 247, 253 (1999). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

The Veteran reported in his application for service connection that he was exposed to artillery fire which led to complete temporary loss of hearing that has progressively worsened. He has reported that he was exposed to cannon and missile fire without hearing protection; that while he had no active combat exposure, he spent considerable time under combat conditions working with 105 and 155 Howitzers and Honest John missiles. He also reported post service recreational noise exposure to hunting rifles and lawnmower noise without hearing protection. His Report of Separation from the Armed Forces (DD-214) documents foreign service and that his military occupational specialty was artillery surveyor. 

Given his military history, the Veteran's contentions regarding his in-service exposure to acoustic trauma are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran is competent and credible to report the circumstances of his service and his symptoms. 

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 between 0 and 20 decibels and  higher thresholds show some degree of hearing loss.  Hensley Brown, 5 Vet. App. 155, 157 (1993).

In Hensley, the Court indicated that 38 C.F.R. § 3.385 does 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 medical relationship between a Veteran's in-service exposure to loud noise and a current hearing loss disability. Id. 

The Veteran is diagnosed with a hearing loss disability. A June 2009 audiology consult diagnosed hearing within normal limits to 2000 Hz and mild to moderately severe hearing loss in higher frequencies in the right ear and hearing loss within normal limits to 1500 Hz, but sloping to a mild to moderately-severe sensorineural hearing loss in the left ear. In an August 2009 VA audiological examination the Veteran was diagnosed with mild to moderately severe sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear. The Veteran exhibited speech recognition scores of 100 percent bilaterally. The Veteran meets the criteria for hearing loss disability for VA purposes. Thus the Board concludes that the Veteran has a current disability according to the definition of impaired hearing under 38 C.F.R. § 3.385 (2012).

While the Veteran has a current disability, the August 2009 VA examiner stated that the Veteran's current hearing loss was not the result of acoustic trauma while serving as an artillery surveyor with the U.S. Army because his service treatment records noted hearing within normal limits at separation. The examiner based this opinion on the normal hearing findings on separation.  See August 2009 VA Audiological examination report.

While the VA examiner stated that he reviewed the Veteran's claims file including the Veteran's service treatment records, the examiner did not address the fact that the Veteran's hearing loss at separation, while not enough to meet the criteria for a hearing loss disability for VA purposes, was at or above the 20 decibel threshold in almost every frequency, bilaterally, indicating some degree of hearing loss. 
Under 38 C.F.R. § 3.307(c), no presumptions may be invoked on the basis of advancement of the' disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, must be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. 38 C.F.R. § 3.307(c)

The Veteran's November 1961 induction examination report noted the following audiometric testing results:




HERTZ



500
1000
2000
3000
4000
RIGHT
15(30)
15(25)
15(25)
n/a
15(20)
LEFT
15(30)
15(25)
15(25)
n/a
15(20)

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)




The following results were obtained for the Veteran's March 1965 separation examination audiometric testing:




HERTZ



500
1000
2000
3000
4000
RIGHT
10(25)
10(20)
10(20)
10(20)
30(35)
LEFT
0(15)
10(20)
10(20)
10(20)
30(35)


The VA examiner's opinion is incomplete because it did not address that the Veteran's separation examination indicated some degree of hearing loss. Additionally, the Board notes that it appeared as though the conversion to ISO-ANSI standards had not been considered by the August 2009 VA examiner. 

An addendum must be obtained. The examiner must review the Veteran's in-service audiometric testing (to include the conversion to ISO-ANSI standards) and provide a new opinion taking into consideration that the Veteran exhibited some degree of hearing loss upon separation from active duty service. 

Accordingly, the case is REMANDED for the following action:

1. Return the Veteran's claims file to the audiologist who conducted the August 2009 VA examination to render an addendum opinion. If that examiner is no longer available, schedule the Veteran for a new examination with an appropriate clinician. The purpose of the examination is to determine the etiology of the Veteran's bilateral hearing loss; in particular, whether the Veteran's post-service hearing disorder is due in whole or in part to noise exposure during active service.

The following considerations must govern the examination:

a. The claims file and a copy of this remand must be made available to the audiologist, who must acknowledge receipt and review of these materials in any report generated.

b. The audiologist must review all medical evidence associated with the claims file. In particular, the Board draws the audiologist's attention to the Veteran's March 1965 separation examination which indicated that the Veteran had some degree of hearing loss upon separation from active duty service once conversion to ISO-ANSI standards is considered. 

c. If a new examination is necessary, all indicated tests and studies must be performed.

d. The audiologist must take a complete history from the Veteran as to his noise exposure before, during, and after service to include but not limited to the Veteran's exposure to artillery fire in service, and any post-service noise exposure through occupation or recreation. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding.

e. The examiner must provide an opinion as to whether the Veteran's current hearing disorder is due in whole or in part to his noise exposure during active service. In particular, the examiner must state whether, in retrospect, any hearing loss exhibited by the Veteran during or within one year of separation from service constituted sufficient evidence of the onset or cause of his current hearing disorder. 

f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles.

g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.

2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order.

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).



_________________________________________________
Vito A. Clementi
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).