Citation Nr: 1617867 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 10-03 249 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service from June 1983 to October 1983 and from April 2006 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 RO decision. The Veteran provided sworn testimony during a January 2014 videoconference hearing before the undersigned Acting Veterans Law Judge. In September 2014, the Board remanded the appeal for further evidentiary development. Such development having been partly accomplished, the matter has been returned to the Board for further appellate review. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action on his part is required. REMAND For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 200, 3000, or 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. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran had acoustic trauma in the form of noise from helicopters during his period of active service, to include service in Iraq in support of Operation Desert Storm. He also has decreased hearing acuity in both ears, but worse in the left ear. Service connection for left ear hearing loss was granted in a May 2013 RO decision. His right ear hearing acuity did not meet the standard set forth in 38 C.F.R. § 3.385, at that time however. Additionally, only a small variation in his right ear hearing acuity is shown between 2003 and 2013, which is the time period for which audiometric test results are available. The Board notes some actions requested in the September 2014 Board remand which have not been fully accomplished yet. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Furthermore, the RO is required to fully complete the development ordered by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In particular, the Board had previously noted that the records from the Veteran's first period of active duty and many of his Army Reserve records have not been associated with his VA file. Upon remand, the RO unsuccessfully requested such records from the VA's Records Management Center. They did not, however, check with the United States Army Human Resources Command, to see whether that organization has his service treatment records or whether they can direct the request to the appropriate repository. It also does not appear that they have checked with the Veteran's former active reserve unit, although he provided the contact information for that unit in his original application for compensation. Additionally, the Board had requested a VA audiological examiner to discuss three separate audiometric test results which are contained in the file (from July 2003, June 2006, and September 2006) so as to obtain a more fully-informed medical opinion. Upon remand, however, the examiner only reviewed and discussed the July 2003 test results. In light of the Veteran's service in Iraq, including his demonstrated acoustic trauma during active service, and the fact that the most recent audiometric testing during the appeal period was accomplished in 2013, the Board determines that another examination which includes audiometric testing should be accomplished to determine whether his hearing acuity meets the standard set forth in 38 C.F.R. § 3.385. During the hearing on appeal, the Veteran testified that he was issued hearing aids at the Darnall Army Medical Center in Fort Hood, Texas. If he has received any further audiological care from that Center or any other source, since the issuance of those hearing aids, he is advised to work with his representative to inform VA so that VA can assist him in obtaining these records for review by adjudicators. Accordingly, the case is REMANDED for the following action: 1. The RO should make another attempt to secure the Veteran's Service treatment records from his first period of service from June 1983 to October 1983 and through official channels, to include formal requests to the Veteran's former active reserve unit and the Army Human Resources Command. 2. The Veteran should be afforded audiometric testing to identify his current right ear hearing acuity. He should also be provided with an audiological examination wherein the examiner examines the Veteran, reviews the service treatment records, his current records, and forms a nexus opinion as to whether the Veteran's right ear hearing loss was incurred in or aggravated during his active duty service. The audiometric test results from July 2003, July 2005, October 2005, June 2006, July 2006, September 2006, May 2007 and June 2007 should all be specifically discussed in the opinion. 3. After the development requested above has been completed, the RO should again review the record, to include any recent treatment and/or evaluation records identified by the Veteran. 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 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). This claim 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 2014). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).