Citation Nr: 1806499 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial compensable disability rating for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2012 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran testified at the Board hearing that his hearing loss is the result of intermittent bouts of otitis media that he began experiencing during active duty service and which have persisted to the present time. His service treatment records include an April 1968 record indicating the Veteran had serous otitis in both ears. He was afforded a VA audio examination in January 2014, in which he was diagnosed with bilateral hearing loss. The VA examiner concluded that it was less likely than not that the Veteran's left ear hearing loss was caused by or a result of an event in military service. In support of this conclusion, the VA examiner noted that the configuration of the hearing loss at the time of his separation was consistent with the previously diagnosed otitis media and was likely conductive in nature. At separation, a mild to moderate hearing loss was measured in the left ear. A June 1970 VA audiological examination revealed normal hearing, and the examiner stated that a comparison of those test results and the induction test results indicate the Veteran experienced no significant threshold shifts consistent with the effects of noise. However, the VA examiner's opinion did not address the Veteran's contention that his left ear hearing loss was not the result of noise exposure, but rather due to recurring bouts of otitis media. Under the circumstances, the Board finds that the Veteran should be examined for purposes of determining whether his hearing loss and the symptoms he has described in his left ear are attributable to same pathology as his service-connected right ear hearing loss. As such, remand is needed for a more thorough VA medical opinion on this issue. With respect to the Veteran's right ear hearing loss, he testified that his hearing has worsened since his last examination. In support of this contention, the Veteran has submitted private audiometric examination results that indeed reflect worsening hearing acuity in his right ear. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a worsening of the Veteran's hearing in his right ear since the last examination, and the last examination was conducted more than four years ago, a new examination should be obtained on remand. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since November 2014. If no medical records are available, this should be noted in the Veteran's claims file. 2. After completion of the foregoing, schedule the Veteran for an audiology examination to determine the current degree of severity of his service-connected right ear hearing loss disability. Copies of all pertinent records must be made available to the examiner for review. The examiner should conduct all indicated tests and studies. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the hearing loss. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. After a review of the record, the examiner should then offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's diagnosed left ear hearing loss is etiologically related to any incident of his active military service, to include the Veteran's reports of experiencing recurring bouts of otitis media both during and since active duty service. The examiner should explain whether the symptoms the Veteran has described in his left ear are attributable to the same pathology as his service-connected right ear hearing loss, or whether they are more likely attributable to another cause. The examiner is requested to provide a complete rationale for any opinion expressed. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).