Citation Nr: 1410144 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 09-27 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969, and his awards and decorations include a Combat Action Ribbon for combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his wife testified before the undersigned at a hearing at the RO in February 2011; a transcript is of record. The Board remanded this case in June 2011 and February 2013 for further development. All pertinent records in the paper claims file and in VA's electronic processing systems have been considered. The issue of entitlement to service connection for right ear hearing loss is again remanded to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if any action is required on his behalf. FINDINGS OF FACT Resolving doubt in his favor, the Veteran has a current left ear hearing loss disability for VA purposes, he has had continuous symptoms of hearing loss since combat service, and the current left ear hearing loss disability began during service. CONCLUSION OF LAW The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION There is conflicting evidence as to whether the Veteran has a current left ear hearing loss disability. Nevertheless, he met the criteria for a current left ear hearing loss disability with a speech recognition score of 92 percent during the May 2008 VA examination. See 38 C.F.R. § 3.385 (defining hearing loss for VA disability purposes, including when the speech reception threshold is less than 94 percent). Further, the Veteran and his wife provided competent evidence of continuous hearing loss symptoms since his combat service in Vietnam, which progressed over time to the current level. There is no evidence directly contradicting those statements, and the Veteran has denied any significant post-service noise exposure for the majority of his time after service. The Board finds that the lack of treatment or testing for many years after service does not negate the evidence of continuous symptoms under these circumstances. Additionally, the three VA examiners indicated that they could not say without speculation that the current left ear hearing loss began during service due to the lack of audiometric testing at separation. As those examiners did not appear to consider the competent and credible lay evidence of continuity of symptomatology, the Board finds that the evidence is in relative equipoise as to the etiology of the Veteran's current left ear hearing loss. In sum, applying the benefit-of-the-doubt doctrine, the Veteran has a current left ear hearing loss disability, there has been continuity of symptomatology for the chronic disability since service, and the current left ear hearing loss began during service. Service connection is warranted. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.307(a)(3), 3.309(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013); McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). ORDER Service connection for left ear hearing loss is granted. REMAND It remains unclear whether the Veteran has a right ear hearing loss disability for VA purposes. VA treatment records dated from September 2011 forward were obtained; however, the results of audiometric testing conducted by VA in September 2011 were not included. These audiograms are pertinent as to whether there is a current right ear hearing loss disability. As such, the remand directives were not substantially completed, and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Veteran should be also afforded another VA examination to determine if his right ear hearing loss has increased to the level of a VA disability, given that he and his wife testified to consistently worsening observable symptoms of hearing loss. The VA examiners gave reasoned explanations for their conclusions that they could not offer an opinion as to the etiology of any current hearing loss without resorting to speculation, which can be sufficient under certain circumstances. See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). Nevertheless, as noted above, they do not appear to have considered the competent and credible lay reports by the Veteran and his wife concerning observable hearing loss symptoms since he returned from combat service. See hearing testimony and statements in January 2008 and February 2011. This is also contrary to the prior remand directives. Stegall, 11 Vet. App. 268. Although the August 2007 private provider considered the Veteran's reports of continuous symptoms, that medical opinion was based in part on testing that is inconsistent with the Veteran's current level of disability, and its probative weight is diminished. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Accordingly, the case is REMANDED for the following action: 1. Associate the September 2011 VA audiogram and audiometric testing results with the claims file. 2. Thereafter, schedule the Veteran for a VA examination as to his right ear hearing loss. The entire claims file should be made available to the examiner for review, including a copy of this remand, and such review should be noted in the report. All necessary tests and studies should be conducted. The examiner should respond to the following: (a) Does the Veteran currently have a right ear hearing loss disability for VA purposes? All available evidence, including current and prior audiometric testing, and in particular any evidence dated from September 2011 forward, should be considered. Please reconcile any discrepancies between pure tone thresholds. (b) Is it at least as likely as not (probability of 50 percent or more) that any current right ear hearing loss disability was incurred as a result of the Veteran's hazardous noise exposure during service, including during combat? A complete rationale must be provided for any opinion offered. Consider all evidence of record, including the competent and credible lay statements by the Veteran and his wife as to continuity of symptomatology since combat service, as well as the prior private and VA opinions. If an opinion cannot be offered without resorting to speculation, indicate such and explain why an opinion cannot be offered. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). All claims remanded by the Board of Veterans' Appeals must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs