Citation Nr: 1756070 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 10-09 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to report for an October 2011 travel Board hearing and his requested Board hearing is therefore considered withdrawn. See 38 C.F.R. § 20.704(d) (2017). The Board remanded the Veteran's claim in September 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. The evidence of record indicated a bilateral hearing loss disability for VA purposes. See September 2009 VA Audio Examination Report (identifying a right ear hearing loss disability); October 2015 VA Audio Examination Report (identifying a left ear hearing loss disability); 38 C.F.R. § 3.385 (2017) (defining when impaired hearing will be considered to be a disability for VA purposes). The Veteran's military occupational specialty (MOS) was boiler technician and based on a "highly probable" probability of exposure to hazardous noise as identified on the Duty MOS Noise Exposure Listing, in-service exposure to hazardous noise is conceded. See DD 214; M21-1, Part III, Subpart iv, Chapter 4, Section B, 4.e. The crucial remaining issue in this case is whether there exists a nexus between the Veteran's current bilateral hearing loss disability and his in-service exposure to hazardous noise. The Veteran was afforded a VA audio examination in September 2009 and a negative opinion as to direct service connection was provided. In September 2014, the Board stated that the provided opinion was inadequate and remanded the current claim for a new VA audio examination and opinion. A negative November 2015 VA opinion was provided and the rationale referenced the Veteran's entrance and separation examination audiological test results as being "within normal limits," that there were "[n]o permanent positive threshold shifts" and that "there was no sign[i]ficant change in hearing levels between entrance and exit hearing exams. Therefore it is not likely that Veteran's current hearing loss is the result of his military service." Upon review, the examiner's rationale relied, at least in part, on a lack of in-service documentation of a bilateral hearing loss disability. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 (2017)), however, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155 (1993); see also November 2017 Written Brief Presentation (citing and discussing Hensley). The provided rationale is accordingly insufficient and remand is required for an additional VA examination and opinion, as outlined further below. The Board notes that in the November 2017 Written Brief Presentation the Veteran's representative discussed that audiological testing at the September 2009 VA examination identified a right ear hearing loss disability for VA purposes and did not identify a left hearing loss disability for VA purposes and that audiological testing at the October 2015 VA examination identified a left ear hearing loss disability for VA purposes and did not identify a right hearing loss disability for VA purposes. The Veteran's representative stated that "[a]s sensorineural hearing loss is not known to return to normal, these discrepancies definitely need the expertise of a further hearing test administered by a Doctor of Audiology to determine correctness." In light of the Veteran's representative's specific contention, an additional VA examination is being ordering on remand, rather than only a VA opinion. In addition, the November 2015 VA opinion stated that "[a] 0-10dB threshold shift is within normal variability between test retest and is not considered significant. There are no threshold shifts greater tha[]n 10dB at any frequency tested." This statement is accurate when comparing the entrance and separation examination audiological test results. The Veteran's service treatment records (STRs), however, also contained additional February 1977 audiological test results. Results in the right ear at 1000 Hz were "0" for the February 1977 audiological test and "15" for the March 1978 separation examination audiological test, which represents a difference of 15 dB. Applying the standard outlined in the November 2015 VA audio opinion, this represents a significant in-service threshold shift between February 1977 and March 1978. The medical professional's attention will be invited to this information on remand. Finally, the Board notes that in the November 2017 Written Brief Presentation, the Veteran's representative cited a medical journal article titled "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss" and discussed this article in support of, essentially, the possibility of delayed onset hearing loss. The representative contended that this research is more authoritative and accepted by professional associations than the study discussed below. The medical professional's attention will be invited to this November 2017 Written Brief Presentation on remand. The Board also calls the medical professional's attention to a study by the Institute of Medicine (IOM) of the National Institutes of Health entitled, "Noise and Military Service," in which the authors found that there was insufficient evidence to support a theory of delayed hearing loss from exposure to high levels of noise. However, the authors did find that an individual's awareness of the effect of noise on hearing may be delayed when some damage occurs in a young person that progresses with additional exposure and aging. See Institutes of Medicine of the National Academies, Noise and Military Service, 203-04 (2006). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination with respect to his bilateral hearing loss disability claim. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not (i.e. 50 percent probability or greater) that a bilateral hearing loss disability had its onset during active service or is related to any in-service disease, event, or injury, to include conceded in-service exposure to hazardous noise. While review of the entire claims folder is required, the medical professional's attention is invited to February 1977 audiological test results and March 1978 separation examination audiological test results, which at 1000 Hz reflected a difference of 15 dB and applying the standard outlined in the November 2015 VA audio opinion, represents a significant in-service threshold shift between February 1977 and March 1978. The medical professional's attention is further invited to the November 2017 Written Brief Presentation, which cited a medical journal article titled "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss" and discussed this article in support of, essentially, the possibility of delayed onset hearing loss and the findings in the 2006 IOM study, "Noise in Military Service" discussed above. In rendering the above opinion, the medical professional is advised that the absence of in-service evidence of a hearing loss disability during service is not always fatal to a service connection claim, so long as a medically sound basis upon which to attribute the post-service findings to the injury in service is found, in this case - hazardous noise exposure. For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. 2. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).