Citation Nr: 1637018	
Decision Date: 09/21/16    Archive Date: 09/27/16

DOCKET NO.  10-40 817A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1985 to October 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board remanded this matter in November 2014 for further evidentiary development.

In September 2014, the Veteran testified at a videoconference hearing with a Veterans' Law Judge (VLJ).  In April 2016, the Veteran received notice that the VLJ who presided over her hearing was not available to decide her case, and she was given the opportunity to appear at an additional hearing.  The Veteran did not respond to that notification, indicating her implied consent for the Board to publish a decision without an additional hearing.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran contends that he is entitled to service connection for bilateral hearing loss.  For the following reasons, the Board finds a remand is in order for additional medical examinations.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 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.  As stated previously, to receive entitlement for service connection for hearing loss, the Veteran must also have experienced an-service incurrence or aggravation of a disease or injury.  38 38 C.F.R. § 3.303(a).  

Even if audiometric testing revealed that a veteran's hearing loss was within normal limits at separation from service, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A review of the facts reveals the following:

At the July 1985 enlistment audiogram, the Veteran scored the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
0
5
5
LEFT
30
25
10
15
20

In a November 1988 audiological examination, the Veteran scored the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
5
10
LEFT
30
20
20
20
15

In her September 1989 discharge examination, the Veteran scored the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
5
10
5
15
LEFT
35
35
25
15
20

Two days later, the Veteran underwent a separate audiological examination and scored the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
20
15
LEFT
35
35
25
15
20

In August 2009, the Veteran underwent a Compensation and Pension (C&P) examination in which the examiner opined that as the Veteran did not undergo a permanent shift in hearing thresholds during service, it was less likely than not that the Veteran's current hearing loss began during service.

In September 2009, the Veteran underwent a C&P examination pertaining to her ear in which the examiner concluded the Veteran suffered from left ear hearing loss upon entrance and exit of service, which the examiner believed was tympanosclerosis and not related to the Veteran's military service.

In September 2014, the Veteran appeared at a videoconference hearing and testified that she believed her hearing loss stemmed from her constant and consistent exposure to the hangers during her time in the Air Force.  Moreover, she said that at her discharge examination, the examiner informed her she suffered from hearing loss in the left ear.  Since leaving the service, the Veteran explained that she had not endured any exposure to loud noises in her job in retail.  Lastly, the Veteran reported that she was first prescribed hearing aids in 2009 or early 2010.

In May 2015, the Veteran underwent an additional C&P examination and was diagnosed with left ear mixed and sensorineural hearing loss.  The examiner opined the Veteran's hearing loss was less likely than not caused by or a result of an event in military service, as the Veteran did not experience any shift in hearing during her time of active duty.  Moreover, the examiner believed the Veteran's time in service did not aggravate beyond its normal progression the hearing loss in her left ear, as there was no shift in hearing during that time.

The Board finds the examinations of record inadequate, as they focus purely on whether or not the Veteran suffered hearing loss while in service as the sole means of determining whether her current hearing loss is related to service, despite the fact that, as the Veteran testified, her only exposure to loud noise occurred during service, and she required hearing aids at the relatively young age of 48.  Although one examiner attributed the Veteran's hearing loss to tympansclerosis, no examiner discussed when the Veteran first developed it-it seems especially relevant to know if the Veteran's tympansclerosis developed during service.  Lastly, no examiner discussed recent studies demonstrating exposure to loud noise can contribute to delayed onset of hearing loss.  Accordingly, another examination is in order.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an audiological examination with an ENT physician to determine the nature and etiology of the Veteran's hearing loss.  The ENT should also determine whether it is as likely as not (50 percent probability or greater) that the hearing loss is related to the Veteran's time in service.

In making these determinations, the examiner should particularly consider the following:

a. The Veteran's assertion that her only noise exposure occurred during service;

b. the Veteran's tympanscleoris diagnosis; when it was diagnosed, and whether or not it was affected by her time in the military;

c. the recent research discussing the possibility of delayed onset hearing loss, including studies by Dr. Sharon Kujawa.

2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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).



_________________________________________________
BRADLEY W. HENNINGS
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).