Citation Nr: 1803500	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  11-29 626	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from January 1951 to December 1953 and also had additional service in the National Guard and Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2015, the Board remanded this issue for additional development.

In August 2016, the Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claim file.

In November 2016, the Board denied the Veteran's claim for service connection for bilateral hearing loss.

The Veteran subsequently appealed the November 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In an October 2017 Order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's November 2016 decision and remanded the appeal to the Board for readjudication consistent with the JMR. 

The issues of whether new and material evidence has been received to reopen a previously denied claim for service connection for a sleep apnea disability; entitlement to service connection for tinnitus, dementia, unbalanced walking, sciatica, a bilateral foot disability, a bilateral knee disability and vision loss; and entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or by reason of being housebound, have been raised by the record in a January 2016 statement and at his August 2016 Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

The Board finds that more development is necessary prior to final adjudication of the claim on appeal.

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, 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 Tests are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran underwent a VA examination in January 2010 in which the examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his military service.  The examiner noted that the Veteran's hearing examinations from 1978 to 1989 showed that his hearing was within normal limits with mild high frequency loss in both ears.  

However, as noted by the October 2017 JMR, a review of the service treatment records demonstrate that the audiogram results showed a hearing loss disability for VA purposes in one or both ears.  

Notably, the April 1978 audiogram demonstrated both ears with frequencies 40 db or greater, the July 1982 audiogram demonstrated left ear with a frequency 40 db or greater, the December 1985 audiogram demonstrated left ear with frequencies 40 db or greater, and the April 1989 audiogram demonstrated both ears with frequencies 40 db or greater.

The January 2010 VA examiner's negative nexus opinion is based, in part, on the Veteran's hearing examinations from 1978 to 1989 showing that his hearing was within normal limits.  However, the service treatment records demonstrate that the audiogram results showed a hearing loss disability for VA purposes in one or both ears.  As indicated by the October 2017 JMR, a new examination is therefore needed which concedes that the Veteran met the VA hearing loss disability threshold during this period.

Additionally, as noted by the October 2017 JMR, the Veteran contends that his hearing has been impacted by his service-connected scars, head face or neck (shrapnel injury) disability.

As a result, the Board finds that an opinion is also needed to determine whether the Veteran's current bilateral hearing loss disability is related to his active duty service to include as being caused or aggravated by his service-connected scars, head face or neck (shrapnel injury) disability.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4).  

Thus, the Board finds that the evidence currently of record is insufficient to resolve the claim for entitlement to service connection for bilateral hearing loss and that further opinion in connection with this claim is necessary for a fully informed evaluation of the claim on appeal.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.159(c)(4).

Accordingly, the case is REMANDED for the following action:

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

1.  The Veteran should be requested to provide the names, addresses and dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  

2.  After the development in #1 has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently present bilateral hearing loss.  

Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion regarding whether:

(i) Is it at least as likely as not (50 percent or greater probability) that any such bilateral hearing loss disability is related to any incident of the Veteran's active duty service (January 1951 to December 1953).  

(ii) The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such bilateral hearing loss disability is (a) caused by or (b) aggravated by his scars, head face or neck (shrapnel injury) disability.

If the examiner finds that the Veteran's bilateral hearing loss disability has been permanently aggravated/worsened by his scars, head face or neck (shrapnel injury) disability, to the extent feasible, the degree of worsening should be identified.  

In making these determinations, the examiner should specifically address 1978 to 1989 audiograms conducted during the Veteran's period of Reserve service which demonstrate results showing a hearing loss disability for VA purposes in one or both ears (copied below).  The examiner should also specifically address the Veteran's contention that his hearing was impacted by a shrapnel injury.

April 1978 audiogram:





HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
35
25
30
LEFT
10
20
35
35
45

July 1982 audiogram:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
20
15
LEFT
25
20
20
15
45

December 1985 audiogram:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
15
30
LEFT
10
10
20
45
40
March 1989 audiogram:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
25
45
LEFT
10
10
20
40
50

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

3.  After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations.  If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if in order.

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).





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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).





_________________________________________________
S. HENEKS
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).