Citation Nr: 1340778 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-49 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Andrew Ahlberg INTRODUCTION The Veteran served on active duty from December 1956 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2013, the Veteran and his spouse testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additionally, in connection with his hearing, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim on appeal so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran, to include in sworn testimony to the undersigned, has reported problems with hearing that began during or proximate to service that have continued to this time as a result of unprotected exposure to heavy weaponry during his active duty service in an artillery unit (the Veteran's DD Form 214 corroborates such service). He also testified that he was not exposed to any significant acoustic trauma after service. The Veteran's spouse testified as to observing him having such problems for as long as she has known him (35 years). The Veteran's February 1955 induction examination revealed that, upon whispered and spoken voice testing, his hearing was 15/15. However, at the time of his November 1962 separation examination, audiometric examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 15 LEFT 10 5 10 10 10 The Board notes that, for service department examinations conducted on October 31, 1967 or earlier, the Board ordinarily assumes that audiometric testing was conducted using ASA (American Standards Association) measurements. After that date, the Board ordinarily assumes that any audiometric testing was conducted using current ISO (International Standards Organization) measurements. As such, the Board has converted the November 1962 audiometric examination as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 20 LEFT 25 15 20 20 15 While such thresholds do not meet VA's definition for a hearing loss disability as defined by 38 C.F.R. § 3.385, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, clinical evidence of record in the form of audiometric findings from tests taken by the Veteran, as a civilian, at a military facility from April 1969 reflect evidence of bilateral hearing loss. The record also reflects a report from a private August 2009 audiologic evaluation demonstrating bilateral sensorineural hearing loss in an audiometric configuration said by the examiner to be associated with noise induced pathology. Also of record are reports from a June 2010 VA audiologic examination that resulted in the conclusion by the examiner that the Veteran's hearing loss was not due to or the result of acoustic trauma. The sole rationale for this conclusion (with the examiner indicating that the only evidence reviewed were the service treatment reports) was that the military separation examination showed normal hearing. However, the examiner did not seem to consider the conversion of ASA to ISO measurements, as indicated above. Additionally, an examination is inadequate where the examiner relies solely on the absence of evidence of disability in the service treatment reports, and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Moreover, the lack of in-service evidence of hearing loss is not fatal to a claim for service connection for hearing loss. Hensley, supra. The Veteran is competent to assert that has had continuing problems with hearing loss from or proximate to service to the present time. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Charles v. Principi, 16 Vet. App 370, 374 (2002). In the instant case, the Veteran's assertions as to continuing problems with hearing have been supported by 1969 clinical records, and the record reflects a private clinical report linking the Veteran's hearing loss to acoustic trauma. The Veteran's spouse has also testified as to witnessing the Veteran having problems with hearing for the 35 years she has known him. As such, the Board finds that the Veteran's statements as to continuing problems with hearing loss from or proximate to service to the present time are credible in addition to being competent. Given the fact that the conversion to ISO units of the November 1962 separation examination revealed borderline normal hearing, with a deficiency at 500 Hertz bilaterally, the credible and competent lay statements, to include in testimony to the undersigned, as to problems with hearing loss from or proximate to service to the present time ,and the judicial precedent as set forth above, an addendum etiological opinion that documents consideration of these statements and the complete evidence of record should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the VA audiologist who conducted the Veteran's June 2010 VA examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the June 2010 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the audiometric findings at the November 1962 separation examination as converted to ISO units; testimony at the November 2013 hearing; the post-service clinical evidence of hearing loss since 1969; and the August 2009 private audiologist's opinion linking the Veteran's hearing loss to acoustic trauma, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to his in-service noise exposure, to include his military duties in an artillery unit that involved exposure to heavy gun noise. In rendering such an opinion, the examiner should specifically document consideration of the Veteran's complaints of continuous bilateral hearing loss from or proximate to service to the present time and his report of no significant exposure to post-service acoustic trauma. The opinion should be supported by a clear rationale and not be based solely on the lack of any evidence of hearing loss in the service treatment reports. Dalton, Hensley, supra. 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Again, it is emphasized that this claim has been advance on the docket and must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).