Citation Nr: 1330211 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-03 914 ) 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 Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to October 1971. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran's claims file. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for bilateral hearing loss. When, as in the instant case, there is evidence that the Veteran engaged in combat, satisfactory lay or other evidence of an injury sustained in the line of such duty shall be accepted as sufficient proof of in-service incurrence if the evidence is consistent with the circumstances of service, even when there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002). However, competent evidence demonstrating present disability or a nexus between a present disability and some remote injury or disease of active service is still required. See Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition"). Although Section 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and active service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The Veteran's DD Form 214 reflects that he received a Combat Infantry Badge which demonstrates his service in combat. The service treatment records are silent for complaints or treatment for hearing loss. Audiometric findings on his separation examination in October 1971 did reflect some threshold shifts, both better and worse, from his entrance audiometric examination in January 1970. Significantly, in the left ear, the puretone threshold at 2000 Hertz was 0 decibels on entrance and 15 decibels on separation examination. At 4000 Hertz, entrance examination revealed a puretone threshold of 0 decibels in the right ear, but 5 decibels at separation. The Veteran was afforded a VA audiological examination in June 2010. The examiner noted that the Veteran had normal hearing at discharge and opined that the Veteran's hearing loss was not caused by or a result of noise exposure while in combat. The Veteran is not required to show a hearing loss disability for VA purposes during service. The proper inquiry is not whether a hearing loss disability for VA purposes was shown during service; rather, it is whether his current hearing loss disability may be related to his service, to include noise exposure therein. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the examiner did not explain why normal hearing at discharge indicates that the Veteran's current hearing loss is not related to his extensive noise exposure during service. Also, the basis for the examiner's conclusion does not account for the Veteran and his wife's credible accounts of hearing loss, to include onset and recurrence since separation. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the Veteran has submitted lay statements from friends and his employer regarding in-service noise exposure and post-service occupational noise exposure precautions. Accordingly, a new examination should be scheduled on remand. In addition, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have treated him for hearing loss. After securing any necessary release, the RO/AMC should request any relevant records identified that are not duplicates of those already contained in the claims file. 2. After the above has been completed to the extent possible, the RO/AMC should schedule the Veteran for a VA audiological examination to determine the current nature of the Veteran's hearing loss and to obtain an opinion as to whether such is possibly related to his combat service. The examiner is requested to review the claims file, including the lay statements. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's current hearing loss in either ear arose during service or is causally related to active combat service? In rendering this opinion, please consider the Veteran's noise exposure during combat service, the Veteran's and his wife's lay assertions of his hearing loss shortly after service, and his report of always wearing hearing protection in post service employment. In addition, please address the threshold shift of 15 decibels in the left ear at 2000 Hertz and 5 decibel shift in the right ear at 4000 Hertz from entrance to separation. Finally, please explain why normal audiological findings at separation are/are not significant in determining whether current hearing loss is related to service. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. A. BANFIELD 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).