Citation Nr: 1410145	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  11-12 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence was received to reopen the Veteran's claim for service connection for right ear hearing loss, and if so, whether service connection is warranted for such disability.

2.  Entitlement to a compensable initial disability rating for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from June 1956 through March 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reopened and granted service connection for left ear hearing loss with a noncompensable initial disability rating effective September 4, 2009, and reopened and denied service connection for right ear hearing loss.  The Veteran has perfected a timely appeal as to this decision.

The Veteran and his spouse testified during a December 2011 Travel Board hearing.  A transcript of this testimony is associated with the record.

The issue of the Veteran's entitlement to a compensable initial disability rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

1.  A January 2003 rating decision denied the Veteran's claim for service connection for bilateral hearing loss; notice of that decision was mailed to the Veteran on January 15, 2003; and the Veteran did not subsequently perfect a timely appeal of that decision.

2.  The Veteran's current request to reopen his claim for service connection for bilateral hearing loss was received in September 2009.

3.  Service connection for left ear hearing loss was granted in an April 2010 rating decision; however, the Veteran has maintained his appeal regarding service connection for right ear hearing loss.

4.  The evidence associated with the claims file since the RO's January 2003 rating decision, when considered with the evidence previously of record, relates to the previously unestablished question of whether the Veteran's right ear hearing loss is related to his active duty service, and moreover, raises a reasonable possibility of substantiating the Veteran's claim for service connection for right ear hearing loss.

5.  The Veteran's right ear hearing loss was not sustained during active duty service and has not been shown as having resulted from acoustic trauma or other injury or illness sustained during service.


CONCLUSIONS OF LAW

1.  The additional evidence associated with the claims file since the RO's final January 2003 decision is new and material, and the Veteran's claim for service connection for right ear hearing loss is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).

2.  The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Such notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In the context of a claim to reopen a final decision on the basis of new and material evidence, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA requires that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes the type of evidence and information that would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  A claimant is thereby notified that the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.  Failure to provide this notice is generally prejudicial.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

Regarding the issue of whether new and material evidence was received to reopen the Veteran's claim for service connection for right ear hearing loss, given the favorable action taken below with regard to that issue, the Board finds that any deficiency in notice or assistance is not prejudicial at this time.

Regarding the underlying issue of the Veteran's entitlement to service connection for right ear hearing loss, a pre-rating September 2009 letter notified the Veteran of the information and evidence needed to substantiate his claim.  Consistent with Dingess, the letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's April 2010 rating decision.  Thus, because the VCAA notice was legally sufficient, VA's duty to notify has been satisfied.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  His service treatment records, service personnel records, claims submissions, lay statements, hearing transcript, and VA treatment records have been associated with the record.  The Veteran was also afforded a VA examination for hearing loss in March 2010.  This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature and etiology of the Veteran's right ear hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

I.  New and Material Evidence

The Veteran's original claim for service connection for bilateral hearing loss was denied in a January 2003 rating decision.  As basis for its denial, the RO determined that the evidence available at that time did not show that the Veteran's hearing loss was related in any way to his active duty service.  The Veteran did not appeal the January 2003 rating decision; hence, that decision is final.  38 U.S.C.A. § 7105(c).

Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered.  38 U.S.C.A. §§ 7104, 7105.  Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."

Under 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim."  Such evidence must also "raise a reasonable possibility of substantiating the claim."

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the January 2003 rating decision, the evidentiary record consisted of the Veteran's service treatment records; service personnel records; and VA treatment records dated from February through October of 2002.

The Veteran's request to reopen his claim for service connection for bilateral hearing loss was received in September 2009.  As noted previously, service connection for left ear hearing loss was granted in an April 2010 rating decision; however, the RO has continuously denied service connection for right ear hearing loss.  The Veteran maintains his appeal regarding his claimed right ear hearing loss.

VA has received additional evidence which consists of additional allegations raised by the Veteran in his September 2009 claim, April 2010 Notice of Disagreement, June 2010 VA Form 21-4138 statement, and during his December 2011 Travel Board hearing; additional VA treatment records dated through September 2009; and a March 2010 VA examination report.

In his claim, the Veteran alleged that he had been experiencing hearing loss since his separation from active duty service and that his hearing loss had progressed over the years.  In his June 2010 statement, he alleged that he sustained acoustic trauma during service from jet engine noise while performing duties as a jet engine mechanic.  During his hearing, both the Veteran and his spouse testified that the Veteran appeared to be having hearing loss dating back to his period of active duty service.  The newly received VA treatment records reflect that, since August 2001, the Veteran had been reporting to VA medical staff that he had been having hearing loss since his exit from service.  Audiometric testing performed during the Veteran's March 2010 VA examination indicated elevated pure tone thresholds in the right ear which meet the requirement for a disability under 38 C.F.R. § 3.385.

Overall, the current evidentiary record appears to raise the possibility that the Veteran sustained acoustic trauma during his active duty service and that he now has hearing loss in his right ear which may be related to such acoustic trauma.  In view of the same, the evidence appears to raise a reasonable possibility of substantiating the Veteran's claim for service connection for right ear hearing loss.  Hence, the Board finds that new and material evidence has been received and that the Veteran's claim for service connection for right ear hearing loss must be reopened.  This claim will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Service Connection for Right Ear Hearing Loss

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain listed chronic diseases may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

While hearing loss disability is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  To the extent that the evidence suggests that the Veteran has experiences some degree of hearing loss that is sensorineural in nature, the Board will consider whether service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307, 3.309 is warranted. 

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In addition to the basic service connection principles outlined above, where service connection for hearing loss is at issue, hearing loss is not considered a disability (and hence, service connection may not be granted) unless the hearing loss is of a particular level of severity.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In this case, repeated audiometric testing has shown that the Veteran does have a hearing loss disability in his right ear, as defined under 38 C.F.R. § 3.385.  In that regard, audiometric testing performed during September 2002 VA treatment revealed the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
45
55
50

Audiometric testing performed during the Veteran's March 2010 VA examination revealed that the Veteran demonstrated 88 percent speech recognition ability in his right ear as well as the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
25
50
60
55

Based upon the foregoing data, the March 2010 VA examiner diagnosed moderately severe sensorineural hearing loss for the right ear.  As the evidence clearly shows that the Veteran has a current sensorineural hearing loss disability in his right ear, as defined under the regulations, the disposition of the Veteran's service connection claim turns upon the question of whether the Veteran's right ear sensorineural hearing loss is related in any way to his active duty service.

As noted above, the Veteran has alleged that he sustained acoustic trauma from jet engine noise, while working as a jet engine mechanic.  Consistent with these assertions, the service personnel records in the claims file corroborate that the Veteran served the majority of his active duty as a jet aircraft mechanic and crew chief and was responsible for repairs, maintenance, and inspection of military aircraft.  Notably, a hearing conservation study of the Veteran performed in March 1959 reflects that the Veteran did not generally use ear protection during the performance of his duties.  Certainly, the nature of the Veteran's duties during active duty service is consistent with his allegations of acoustic trauma.

Notwithstanding the Veteran's in-service acoustic trauma, the evidence does not support the assertion that the Veteran's right ear hearing loss is related in any way to such acoustic trauma or to any other injury or illness sustained by the Veteran during his active duty service.

In reviewing the Veteran's service records, the Board first notes that an audiometric examination was not performed during the Veteran's June 1956 enlistment examination.  Nonetheless, the enlistment examination report notes that a clinical examination of the Veteran's ears was normal.  Moreover, in a Report of Medical History completed by the Veteran during his enlistment examination, the Veteran expressly denied having any prior or current history of ear, nose or throat trouble, and did not report any decreased hearing.  Accordingly, the record shows that the Veteran did not have any hearing loss prior to service.

The service treatment records do not reflect any complaints of decreased hearing during service, nor do they reflect any objective findings or diagnoses of hearing loss.  Audiometric testing performed during the aforementioned March 1959 hearing conservation study showed the following pure tones for the right ear:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5 (10)
-5 (5)
0 (10)
0 (10)
0 (5)

(NOTE: prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  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 older ASA standards (which are expressed outside parentheses on the left) have been converted to ISO-ANSI standards (which are expressed by the figures in parentheses on the right)).

The Veteran's March 1961 separation examination report reflects that a clinical examination of the ears performed at that time was again normal.  Notably, a Report of Medical History completed by the Veteran during his separation examination shows that the Veteran again denied having any ear, nose, or throat trouble and again did not report any decreased hearing.  Also, an audiometric examination performed during the separation examination revealed pure tones for the right ear which were essentially unchanged from those shown during the March 1959 hearing conservation study:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5 (10)
-10 (0)
-10 (0)
5 (15)
-5 (0)

As noted at the outset of this section, audiometric testing performed during VA treatment in September 2002 indicated clear audiometric changes in comparison to the pure tones shown in the service treatment records, and, indicated a current hearing loss disability for the right ear.  Nonetheless, the VA treatment records do not express any opinions as to the cause of the Veteran's hearing loss.  Notably, however, the records do show that, beginning in August 2001, the Veteran expressly reported during VA treatment that he noted hearing loss in his left ear at the time of his separation from service.  Although the Veteran also reported that he had noted some decrease in hearing acuity in his right ear over the years, he conspicuously did not report that he also noted hearing loss in his right ear at the time of his separation from service.

During the aforementioned March 2010 VA examination, the examining audiologist opined that it is less likely than not that the Veteran's right ear hearing loss is due to the Veteran's reported in-service noise exposure.  As rationale, the examiner noted that the audiometry for the Veteran's right ear was within normal limits at the time of his separation from service.  The examiner noted further that 2005 studies performed by the National Institute of Health determined that noise induced hearing loss occurs immediately, and, that there is no scientific evidence of delayed onset noise induced hearing loss which occurred weeks, months, or years after the acoustic trauma.  Thus, the examiner concluded, the Veteran's hearing loss was more likely due to other factors such as aging, occupational or recreational noise exposure, usage of certain medications, and hypertension.

After careful review and consideration of the evidence in this case, and even assuming that the Veteran sustained acoustic trauma from jet engine noise during service, the Board must conclude that the Veteran is not entitled to service connection for hearing loss.  In that regard, the evidence does not show that the Veteran's current sensorineural hearing loss was initially sustained during service, manifest within one year of his separation from service, or resulted from an event or injury that occurred during his active duty service.

In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that are "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).

Certainly, the Veteran is competent to provide probative statements as to the onset and duration of his hearing loss.  Similarly, the Veteran's spouse is competent to report her own observations of the Veteran's hearing impairment.  See Barr, 21 Vet. App. at 308-09.  Nonetheless, to the extent that the Veteran and his spouse have advanced the assertion that the Veteran demonstrated hearing loss dating back to his separation from service, such assertions carry significant credibility concerns given various inconsistencies in the record.  As noted above, the Veteran expressly denied having any history of prior or current hearing loss during his separation examination.  Moreover, the service treatment records do not document any subjective complaints or objective findings or diagnoses related to hearing loss, and a comparison of the audiometry shown during the 2009 hearing conservation study and the Veteran's separation examination does not indicate any actual auditory shifting which suggests the occurrence of any right ear hearing loss during service.  Finally, and as noted above, the Veteran expressly reported during VA treatment since 2001 that he first noted left ear hearing loss during his separation from service, but notably, did not mention right ear hearing loss.  Given these inconsistencies, the Board finds that the lay assertions concerning the onset and continuity of hearing loss are not credible, and hence, are not entitled to probative weight.

In contrast, the service treatment records do not reflect any irregularities or abnormalities that would indicate that the audiometric testing performed during the hearing conservation study and the Veteran's separation examination are inaccurate or unreliable.  For this reason, the Board finds that the objective data expressed in the service treatment records are due far greater probative weight than the assertions raised by the Veteran and his spouse that the Veteran had hearing loss since his separation from service.

The evidence also does not show that the Veteran's hearing loss was manifest within one year from his separation from service.  In that regard, the complete VA treatment records do not reflect evaluation or treatment for right ear hearing loss until 2001, approximately 40 years after the Veteran was separated from service.  Certainly, the Board may expect that any evaluation or treatment related to reported hearing loss prior to 2006 would be memorialized in the treatment records.  Moreover, there is no indication in the record that the assembled VA treatment records are incomplete.  Further, the Veteran's own reported medical history suggests only that he noted diminished right ear hearing over the years, but does not suggest that the Veteran's right ear hearing loss began at a certain point in time.  Given the absence of any noted post-service complaints or treatment pertaining to hearing loss before 2001, coupled with the Board's earlier finding that lay assertions concerning the continuity of hearing loss since service are not credible, there is simply no basis in the record for determining that the Veteran's hearing loss was manifest within one year from his separation from service in March of 1961.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Finally, the evidence does not show that the Veteran's bilateral hearing loss is related in any way to the Veteran's active duty service, to include his claimed in-service acoustic trauma.  The only probative opinion in that regard that has been rendered by a medical professional is that expressed in the aforementioned March 2010 VA examination.  In that regard, the expert concluded that it is less likely than not that the Veteran's right ear sensorineural hearing loss is related to his in-service acoustic trauma or loss of hearing acuity.  As noted above, this opinion was rendered following a review of all of the evidence contained in the claims file.

Overall, the examiner's opinions are based upon an accurate review of the claims file which is consistent with the facts shown in the record.  The examiner's diagnosis and opinion are based upon a review of the Veteran's reported medical history and the objective findings from the audiometric examinations performed during and after the Veteran's active duty service.  Moreover, the examiner cites the current state of scientific knowledge in determining that the Veteran's demonstrated pure tones are not consistent with noise-induced sensorineural hearing loss, but rather, other known factors which include the Veteran's advanced age.  These opinions and findings are not rebutted by any contrary medical opinions.

Although the Board is sympathetic to the Veteran's belief that his right ear hearing loss resulted from his active duty service, the weight of evidence is against the Veteran's claim for service connection for right ear hearing loss.  As such, this claim must be denied.  In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is also inapplicable with respect to the Veteran's hearing loss claim.  Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b).


ORDER

New and material evidence has been received, and the Veteran's previously denied claim for service connection for right ear hearing loss is reopened.

Entitlement to service connection for right ear hearing loss is denied.


REMAND

Regarding the Veteran's claim for a compensable initial disability rating for left ear hearing loss, the Board notes that the Veteran was most recently afforded a VA examination of his hearing loss in March 2010.  During his December 2011 hearing, the Veteran and his spouse indicated that the Veteran's hearing loss has progressed and resulted in functional difficulties which include difficulty communicating over the telephone; difficulty understanding live conversational speech, particularly with women and children; and watching television and listening to the radio at high volume.

In view of the foregoing assertions and as approximately four years have passed since the Veteran's left ear hearing loss was evaluated, the Veteran should be arranged to undergo a new VA examination to assess the current severity of his left ear hearing loss and any resulting functional loss.  38 C.F.R. § 3.159(c)(4); Caffrey v. Brown, 6 Vet. App. 377 (1994).

Prior to arranging the above examination, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his hearing loss since March 2010.  VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran.  38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for a compensable initial disability rating for left ear hearing loss.  This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran.

The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of his left ear hearing loss.  The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim.

The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his hearing loss since March 2010.

2.  Make efforts to obtain the records of any treatment identified by the Veteran.  Any records obtained as a result of such efforts should be associated with the claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  After the development actions described above have been performed to the extent possible, the Veteran should be afforded a VA examination, with an appropriate examiner, to determine the current severity of his service-connected left ear hearing loss and any associated functional loss.  The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination.

All tests and studies deemed necessary by the examiner should be performed, including an interview of the Veteran; audiometric testing to determine pure tone thresholds for the left ear at 1000, 2000, 3000, and 4000 Hertz; and speech recognition ability for the left ear as determined via Maryland CNC test.  The examiner should also identify any functional loss resulting from the Veteran's left ear hearing loss, to include any interference with activities of daily living and/or occupational functioning.

A complete rationale should be given for all opinions and conclusions.  Such rationale must include a discussion of all relevant findings from the examination and applicable medical principles.  All findings, conclusions, and supporting rationale should be expressed in a typewritten report.

4.  If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility.

5.  After completion of the above development, the issue of the Veteran's entitlement to a compensable initial disability rating for left ear hearing loss should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond.

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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs