Citation Nr: 1329086 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-15 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial compensable rating for service-connected hearing loss, left ear. 2. Entitlement to service connection for hearing loss, right ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for left ear hearing loss, denied service connection for right ear hearing loss, and denied service connection for tinnitus. The Veteran requested a hearing on his April 2007 VA Form 9, Substantive Appeal. However, in March 2009, the Veteran withdrew that request. In July 2010, the Board denied the Veteran's claim of entitlement to service connection for tinnitus, and remanded the issues of service connection for right ear hearing loss and entitlement to an initial compensable rating for left ear hearing loss for further development, which has been completed, and the case has been returned to the Board for appellate consideration. 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 contends that his right ear hearing loss, which pre-existed entry into the military, was aggravated by his active service and that he is thus entitled to service connection for hearing loss of his right ear. He additionally asserts that he is entitled to an initial compensable rating for his service-connected left ear hearing loss. A remand is necessary with respect to the Veteran's claim for entitlement to service connection for right ear hearing loss to obtain a medical opinion responsive to and in compliance with the directives of the July 2010 Board Remand. Specifically, the Board instructed that an addendum to the September 2006 VA examination be obtained as to "whether the record contains clear and unmistakable evidence that the Veteran's right ear hearing loss, which pre-existed his entry onto active duty, was not aggravated by his active duty service." In addition, the Board further instructed the examiner to comment on the significance, if any, of the increased audiological thresholds seen at 500, 1000, and 2000 Hertz (Hz) respectively, in the Veteran's January 1964 and July 1966 in-service audiometric examinations of his right ear, compared to the thresholds shown at his July 1963 audiological examination upon entry into active service, "after all the examinations have been converted to ISO (ANSI) units." In August 2010, the Veteran was provided with a VA examination. The examiner reviewed the Veteran's claim file, including his service treatment records, and opined that "[t]here was no significance to fluctuations for 500-2000 Hz in either ear during military;" however, as evidenced by her discussion of the examination results from the in-service audiometer examinations, the examiner failed to properly convert and consider the decibel readings as ISO (ANSI) units. In addition, the examiner's opinion stated that the Veteran's "[r]ight ear pre-existing hearing loss was not aggravated by active duty service," without specifically commenting whether the evidence of record was "clear and unmistakable" as to the issue of aggravation. Accordingly, a remand is again necessary to ensure the orders of the Board are complied with. Stegall v. West, 11 Vet. App. 268 (1998). Thus, on remand, the examiner should comment on any significance in the increase in decibel readings between the audiometer results for 500, 1000, and 2000 Hz on the Veteran's entrance July 1963 examination and the January 1964 and July 1966 examinations. After conversion to ISO (ANSI) units, right ear thresholds are as follows: Right Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz July 1963 10 5 5 n/a January 1964 25 15 20 30 July 1966 25 15 20 n/a After taking into consideration any significance in the fluctuations listed above, the examiner must then provide a clarifying opinion using the appropriate standard with respect to aggravation; specifically, whether there is "clear and unmistakable" evidence of record that the Veteran's pre-existing right ear hearing loss was not aggravated by his active duty service. See 38 U.S.C.A. §§ 1111, 1132, 1153 (West 2002); 38 C.F.R. §§ 3.304(b), 3.306 (2012). In the Veteran's November 2012 post-remand brief, the Veteran's representative points out that there was a 35 decibel shift at the 3000 Hz frequency from 1963 to 1964. Upon review of the Veteran's service treatment records, the Veteran's representative is mistaken, as there is no listed result for the Veteran's right ear at the 3000 Hz frequency on the July 1963 audiology examination. Regardless, on remand, the examiner should comment on whether there is any significance to this isolated reading of 30 db at 3000 Hz on the January 1964 examination. A remand is additionally necessary with regard to the Veteran's claim of entitlement to an initial compensable rating for left ear hearing loss to obtain a new VA audiological examination because in his September 2012 statement, the Veteran's representative indicates that the Veteran's disability may have worsened. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the etiology and severity of his current bilateral hearing loss. The claims file, including a copy of this Remand, must be provided to the examiner for review in conjunction with the examination. The examiner must annotate his or her report as to whether the claims file was reviewed. Following review of the claims file, the examiner should provide an opinion as to the following: (a) The significance, if any, of the increase in the Veteran's right ear audiological thresholds from his July 1963 entrance examination to his January 1964 and July 1966 audiometer examinations. Attention is invited to the following particular results: Right Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz Jul. 1963 10 5 5 n/a Jan. 1964 25 15 20 30 Jul. 1966 25 15 20 n/a (b) Whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's right ear hearing loss was NOT aggravated by service. The examiner is reminded that the term "clear and unmistakable" requires that the non-aggravation result be "undebatable." Aggravation means that there was a permanent worsening of the disability beyond the natural progression. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. After ensuring that the requested actions are completed, readjudicate the claims of entitlement to service connection for right ear hearing loss and entitlement to an initial compensable rating for left ear hearing loss on the merits. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).