Citation Nr: 1752713 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-10 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left ear hearing loss disability. 2. Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to March 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal of February 2007 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These matters were previously remanded by the Board in December 2012 for additional evidentiary development. The Veteran was scheduled for a hearing before the Board in August 2011, but failed to appear and provided no explanation for his failure to appear and did not request a new hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2017). The Veteran appealed the Board's August 2015 decision that denied service connection for left and right ear hearing loss to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 Memorandum Decision (Decision), the Court set aside the Board's August 2015 decision and remanded the Veteran's claims for further adjudication consistent with the Decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has claimed his current bilateral hearing loss was caused by or incurred in his period of active service. The Veteran contends that he was exposed to hazardous noise in service, specifically during training exercises which included exposure to M16's and grenade launchers. A January 2007 audiology report notes the Veteran alleged that he sustained an ear injury during a boxing match while in service. At his December 1973 entrance examination , the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 10 10 - 5 LEFT - 15 10 - 30 For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's service treatment records indicate mild hearing loss in the left ear at 4000 Hz upon entering service in December 1973. If the degree of hearing loss noted on entrance medical examinations do not meet VA's definition of a disability for hearing loss under 38 C.F.R. § 3.385, then the presumption of soundness applies. McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). In this case, the Veteran's left ear hearing loss does not meet the criteria set forth in 38 C.F.R. § 3.385. Accordingly, his hearing should be considered normal on entry into service. A audiological examination upon exit from service is not contained in the service treatment records. There are no private or VA treatment records indicating hearing loss prior to January 2007. The Veteran completed VA audiology examination in April 2013. Upon examination, the Veteran was diagnosed with bilateral hearing loss in the frequency range of 500-4000 HZ. The April 2013 VA examiner stated that a medical opinion regarding the etiology of the Veteran's bilateral hearing loss could not be reached without resorting to mere speculation due to the Veteran's lack of treatment records. The record is not sufficient for the Board to decide the claim, and therefore an addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician to provide an addendum opinion regarding his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. An examination of the Veteran is only necessary if deemed so by the clinician. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: a. The Veteran contends that he suffered noise exposure during training exercises that include the use of M16s and grenade launchers. The Veteran further contends he began experiencing ringing in his ears after sustaining an injury during a boxing match while on active duty. b. The lack of a service exit examination of the Veteran's hearing is not sufficient reason to determine the Veteran's bilateral hearing loss was not incurred in service. In addition, the Veteran's claim of continuity of symptomatology cannot be discounted simply because the Veteran has not produced private of VA treatment records of hearing loss prior to his diagnosis of bilateral hearing loss in January 2007. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet App 268 (1998). 3. Thereafter the AOJ should re-adjudicate the Veteran's claims on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. Thereafter, the Veteran and his representative should be given opportunity to respond before the case is returned to the Board. The Veteran 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). _________________________________________________ D. Martz Ames 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) (2017).