Citation Nr: 1625247 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 11-11 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran had active military service from May 1997 to December 2007. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2009 rating decision. In January 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In October 2009, the Veteran underwent VA audiology examination. The examiner examined the Veteran's hearing, finding mild mid-range bilateral sensorineural hearing loss, and reviewed the August 1996 entry examination and in-service audiogram records dating February 2, 2000 and January 14, 2002 (notably, it appears that the correct date of the last audiogram reviewed is January 14, 2003, January 14, 2002). The examiner specifically observed that these were the only service records available for review concerning the Veteran's hearing. From this, the examiner determined that the Veteran had pre-existing hearing loss, as shown by his entry examination, and that his hearing had not changed materially since his enlistment. Accordingly, the examiner concluded that the Veteran's hearing loss was not related to military service. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2015). To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing "by clear and unmistakable evidence both that (1) the Veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service." See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA may rebut the second prong of the presumption of soundness "through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. The "presumption of soundness strongly favors the conclusion that any occurrence of injury or disease during service establishes that the in-service medical problems were incurred in the line of duty . . . [but] . . . it does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury," as the appellant still has to demonstrate a current disability and a nexus between her current disability and the injury or disease in service. Id. at 236. The Board finds the October 2009 VA examiner's opinion to be inadequate because review of the record reveals many more in-service audiograms which were not reviewed but are present in the Veteran's claims file, including audiograms dating 1997, 2001, 2003, 2005, and 2007. Additionally, the Veteran's August 1996 entry examination shows that he might have had some hearing loss at the time but no hearing loss defect was specifically noted. Given the possible pre-existing nature of the Veteran's bilateral hearing loss, the correct standard of review was not used by the October 2009 VA examiner. Accordingly, remand is needed to further medical opinion to resolve the Veteran's claim for a bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. After all records and/or responses received from each contacted entity have been associated with the claims file arrange for the audiologist who provided the October 2009 VA opinion to provide an addendum opinion concerning the etiology of the Veteran's bilateral hearing loss. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an opinion from another audiologist or appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo another VA examination if deemed medically necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/ examination report should include discussion of the Veteran's documented history and lay assertions. The examiner should provide opinion, consistent with sound medical judgment, addressing the following: (A) Whether it is clear and unmistakable that bilateral hearing loss preexisted the Veteran's active military service; and, if so, whether bilateral hearing loss was clearly and unmistakably NOT aggravated (permanently worsened beyond its natural progression) by military service. (B) If the bilateral hearing loss is determined not to have clearly and unmistakably preexisted military service, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) had its onset during service; (b) was manifest to a compensable degree within the first post-service year; or (c) is otherwise medically related to the Veteran's service. In addressing the above, the examiner must consider and discuss all medical and other objective evidence, specifically addressing the significance, if any, of the threshold shifts in the Veteran's hearing acuity demonstrated during in service. Additionally the examiner must indicate the causes of the hearing lost diagnoses assigned to the Veteran and indicate why one cause might apply over another while considering the noise exposure experienced by the Veteran in service. The examiner should also consider and discuss all lay assertions, to include the Veteran's competent assertions as to the nature, onset, and continuity of symptoms. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought is not granted, the AOJ should furnish the Veteran and his representative a Supplemental Statement of the Case and a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). _________________________________________________ MARJORIE A. AUER 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).