Citation Nr: 1414320 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-11 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In September 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claims folder. 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 claims that he was exposed to acoustic trauma from various sources during service. He maintains that his "hearing has been bad" since service. See September 2009 VA Form 21-526. The Veteran is service-connected for tinnitus. Thus, VA has conceded his allegations of noise exposure during service. Service department audiometric examinations prior to November 1, 1967 are assumed to be American Standards Association (ASA) units and have been converted to International Standards Organization (ISO) units for proper comparison. Audiological testing upon service induction in April 1966 revealed the following pure tone thresholds (converted), in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 15 15 15 LEFT 15 10 10 15 10 The examination report notes scarring on both eardrums, which the clinician did not consider disabling. The accompanying medical history report identified "ear, nose or throat trouble," "running ears," and "hearing loss," with the clinician noting that the Veteran had "running ears as [a] child." An undated in-service audiogram revealed pure tone thresholds (converted), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 45 -- 50 LEFT 20 15 20 -- 20 The clinician noted that there was "not much improvement after politzerization." He prescribed Sudafed and tetracycline and recommended that the Veteran return on August 12, 1966. An audiogram from that subsequent visit revealed pure tone thresholds (converted), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 75 -- 65 LEFT 25 25 25 -- 20 Both tympanic membranes were infected and retracted. The right eardrum moved poorly, while the left eardrum moved well. Air conduction results were noted to be greater than bone conduction bilaterally. Politzerization revealed pure tone thresholds (converted), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 -- 50 LEFT 25 15 15 -- 15 The clinician noted that the Veteran's hearing loss was "much improved" after politzerization. An August 17, 1966 audiogram revealed pure tone thresholds (converted), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 35 -- 45 LEFT 35 20 30 -- 25 The clinician noted that the Veteran's hearing was worse, but that he had "just finished firing range." Both tympanic membranes were intact and moved well. Air conduction results were noted to be greater than bone conduction bilaterally. After politzerization, pure tone thresholds (converted), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 -- 30 LEFT 25 20 10 -- 10 The Veteran was diagnosed with right otalgia in November 1966. The ASA audiogram from the June 1968 separation examination reveals the following pure tone thresholds (converted), in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 -- 10 LEFT 20 15 15 -- 10 The Veteran underwent a January 2010 VA audiological examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 35 35 LEFT 25 20 25 30 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The VA examiner diagnosed normal bilateral hearing by VA standards. He reviewed the claims file and opined that this condition is "more likely than not" NOT related to service. (Emphasis in original). He explained that the Veteran's hearing was within normal limits at the time of separation and that there was no significant shift in hearing thresholds between the entrance and exit audiograms. A September 2010 private audiogram reveals the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 -- 40 50 LEFT 25 30 -- 40 55 No nexus opinion was provided. The RO obtained an addendum opinion in May 2011. The provider reviewed the claims file and opined that "[a]ny hearing loss developed after military discharge has to be attributable to exposure after military discharge." He noted that the Veteran's separation audiogram was normal. He explained that the effects of noise induced hearing loss are rapid in onset and are present shortly after exposure. An August 2012 private opinion notes that the audiograms conducted prior to separation "all showed the majority of [the Veteran's] hearing was never better than 15 to 20 decibels in the vast majority of frequencies." The physician, an ENT, concluded that the June 1968 separation examination "is unlikely to be accurate." The physician also considered the Veteran's reported history of in-service noise exposure and opined that the Veteran's hearing loss is "likely service related." He explained that the Veteran had no significant post-service noise exposure. As an initial matter, the Board notes that a VA treatment record appears to be missing from the claims file. Specifically, the August 2012 private opinion specifically references a May 9, 2011 VA audiogram. This document must be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Furthermore, it is unclear as to whether there are other outstanding VA treatment records. Impaired hearing is considered a disability for VA purposes when: the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). It is unclear whether or not the Veteran currently has a bilateral hearing loss disability for VA purposes. The January 2010 and May 2011 VA examination and opinion do not take into account the abnormal audiograms during service and based their negative nexus opinions, in part, on the fact that the Veteran exhibited normal hearing at time of discharge from active service. However, VA regulation 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, remand is required for another VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated treatment records of all VA treatment the Veteran has received for his claimed bilateral hearing loss. The Board is particularly interested in a May 2011 VA audiogram. If the missing document cannot be located, the RO/AMC must notify the Veteran and his representative and inform them that the document appears to have been received but is now missing. The Veteran must also be afforded reasonable time to submit additional arguments and contentions pertaining to the issue on appeal. 2. Then, schedule the Veteran for a VA audiological examination. The claims file, to include a copy of this remand, must be made available to the examiner for review in connection with the examination. An audiogram should be completed, and the results of such testing should be included in the examination report. The examiner should indicate whether any hearing loss exhibited during the course of this claim (from September 2009) is at least as likely as not (i.e., 50 percent or greater probability) related to the Veteran's conceded in-service noise exposure, or a sensorineural hearing loss was exhibited within the first post service year. The examiner should take into consideration the inservice audiograms described herein. The examiner must also consider all relevant evidence of record, to include the January 2010 VA audiogram and the September 2010 private audiogram. If the examiner opines that any currently diagnosed hearing loss is not related to service, the opinion must be supported by a rationale other than that the Veteran's hearing was normal on separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993). A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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. 2013). _________________________________________________ THOMAS J. DANNAHER 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) (2013).