Citation Nr: 1632813 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 14-23 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1971 to May 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the St. Louis, Missouri Department of Veteran Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a March 2013 audiological examination in conjunction with this claim. At the time, the examiner opined that the Veteran's hearing loss is unrelated to service because a "greater portion" of his right ear hearing loss "may be as a result of" a 2004 right ear surgery to remove a cholesteatoma, and his left ear hearing loss pattern was "inconsistent with that commonly seen as a result of acoustic trauma." The Board notes that these opinions are somewhat problematic. First, the conclusion that a portion of the Veteran's right ear hearing loss, regardless of how predominant, is due to a postservice event does not ipso facto rule out a medical relationship to service (during which acoustic trauma is conceded given the Veteran's military occupational specialty as a rifleman). Second, the opinion indicates that "it is likely that" a greater portion of right ear hearing loss "may be" due to the 2004 surgery, creating a nonspecific statement of possibility that does not allow for application of the relevant standard of proof ("at least as likely as not," or a 50 percent or better probability). Finally, a review of the record shows that the Veteran's left ear audiogram at enlistment was apparently conducted according to the American Standards Association (ASA)-1951 metric, and adjusting it forward to comply with contemporary standards shows the Veteran already had left ear hearing loss as defined in 38 C.F.R. § 3.385 at that time. Thus, the critical question in that regard is whether the Veteran's left ear hearing loss, which is shown to have been present at enlistment, was aggravated by the conceded acoustic trauma therein. The March 2013 examiner does not acknowledge the pre-existing left ear hearing loss, indicating a cursory review of the claims file, and therefore the opinion provided is nonresponsive to the critical medical question in this issue. Notably, the Board notes that, if it is felt that there is evidence in the record indicating the Veteran's left ear hearing loss increased in severity during service, it would trigger application of the presumption of aggravation that may only be rebutted by clear and unmistakable evidence that such increase was due to the natural progression of the underlying disability. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In light of the above, the Board finds that additional development is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA and adequately identified private treatment the Veteran has received for his hearing loss. 2. Then, forward the Veteran's record to an otologist for an addendum medical opinion regarding the nature and likely etiology of the diagnosed right and left ear hearing loss disabilities. The examiner should concede that the Veteran was exposed to acoustic trauma during service. Based on a review of the record, the examiner should provide opinions that respond to the following: a. Is it at least as likely as not (a 50 percent or better probability) that any portion of the Veteran's right ear hearing loss is related to acoustic trauma during service? b. Is it at least as likely as not (a 50 percent or better probability) that the Veteran's left ear hearing loss (which is shown to have pre-existed service) increased in severity during service, to include as a result of acoustic trauma therein? c. If so, is there clear and unmistakable evidence that such increase in left ear hearing loss was due to the natural progression of the disability? All opinions must include complete rationale. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the record to the Board. 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 2014). _________________________________________________ VICTORIA MOSHIASHWILI 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).