Citation Nr: 1746960	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  15-07 490	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss. 

2.  Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Shah, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1959 to April 1967.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  A December 2013 rating decision granted service connection for tinnitus and denied service connection for bilateral hearing loss.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's right ear hearing loss is related to active service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right ear hearing loss are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014), 38 C.F.R. §§ 3.102, 3.303, 3.385 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2016).  

Prior to January 1967, all VA audiograms were conducted under an old standard.  From January 1967 through December 1970, VA audiograms were conducted under either the old standard or the current standard.  The Board considers these results under both standards.  After December 1970, all VA audiograms were conducted under the current standard.  Because the statute regulating VA hearing loss determinations is written under the current standard, the auditory threshold readings of examinations conducted under the old standard are adjusted to align with the current standard.  When considering the auditory threshold levels under the old standard, the decibel reading is increased as follows:




HERTZ



500
1000
2000
3000
4000
THRESHOLD
INCREASE
15
10
10
10
5

Hearing loss is a chronic disease that is found to occur in service if it manifested to a compensable degree in active service or, for hearing loss, within one year of separation.  38 C.F.R. §§ 3.307, 3.309.  When a chronic disease is shown in service, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes."  38 C.F.R. § 3.303(b).  

When there is an approximate balance of positive and negative evidence on an issue material to a determination, the VA resolves reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).



Analysis 

The Veteran submits that he has bilateral hearing loss as a result of noise exposure during active service, specifically from acoustic trauma due to his service as an aircraft mechanic.  Medical evidence of record establishes that the Veteran has a current disability of right ear hearing loss for VA purposes.  Service personnel records show that his Military Occupational Specialty (MOS) during active service was as a jet aircraft mechanic.  Based on the facts and circumstances of his service, the Board concedes that the Veteran was exposed to noise while on active service and finds that the Veteran has a current diagnosis of right ear hearing loss.  As such, what remains for consideration is whether the Veteran's right ear hearing loss is etiologically related to his noise exposure in active service. 

A review of the Veteran's service medical records shows that the Veteran experienced some level of shift in hearing acuity during active service, as is evidenced by the Veteran's enlistment audiogram, seven audiology examinations in service, and separation audiogram.  

The Veteran was afforded an induction audiogram in April 1959.  The test results, adjusted to the current standards, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
35
30

Adjusted to the current standards, the Veteran's March 1967 separation examination audiogram results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
10
45
35

At a November 2013 VA audiology examination, the examiner diagnosed the Veteran with right ear hearing loss pursuant to VA standards.  The examiner opined that the etiology of the bilateral hearing loss was not related to service because the Veteran's separation examination showed that he had normal hearing under VA standards.  The Board finds that as the examiner did not address the shift in the Veteran's hearing acuity during active service (particularly in the 3000 hertz range) or review the active service audiological data according to the appropriate standard (i.e. converting the audiogram results to the current standards), the examination and opinion are inadequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007). 

As the Veteran has a current diagnosis of right ear hearing loss and his audiogram on separation from active service shows that the Veteran had right ear hearing loss under the statute at separation, the Board finds that the evidence for and against the claim of entitlement to service connection for right ear hearing loss disability is at least in equipoise.  Reasonable doubt must be resolved in favor of the Veteran.  Therefore, entitlement to service connection for right ear hearing loss disability is warranted.  38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for right ear hearing loss is granted.


REMAND

The Board finds that additional development is needed before the Veteran's claim for left ear hearing loss can be decided.

At a November 2013 VA audiology examination, the examiner diagnosed the Veteran with left ear sensorineural hearing loss.  The examiner opined that because the Veteran had normal hearing in his left ear at his separation examination, the Veteran's left ear hearing loss was not caused by noise exposure in the military.  This conclusion is inadequate because a veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity.  Hensley v. Brown, 5 Vet. App. 155 (1993).

The Veteran reported that he has been experiencing left ear hearing loss since service.  The Board finds his account credible, particularly given the demonstrated right ear hearing loss present at service discharge.  The Board notes that there is no indication that the examiner considered the Veteran's lay statements of record documenting his reports of continued symptoms of left ear hearing loss since separation from active service.  Further, the examiner did not provide an etiological opinion for the Veteran's left ear hearing loss, and consequently the examination is inadequate.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine the nature and etiology of his left ear hearing loss.  The electronic claims file must be made accessible to the examiner.  All tests and studies should be performed, including audiometric testing, and all findings should be set forth in detail.

The rationale for all opinions expressed must be provided.  Based on the examination results and a review of the record, the examiner should respond to the following:

Is it at least as likely as not (50 percent or better probability) that the Veteran's left ear hearing loss is etiologically related to active service? 

In providing the opinion, the examiner must consider the Veteran's account of when he first noticed hearing loss in the left ear.


2.  Then, readjudicate the claim on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case 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).




______________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs