Citation Nr: 20054580 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 16-43 412 DATE: August 18, 2020 REMANDED Entitlement to service connection for hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1966 to May 1968, to include service in Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The RO found, in pertinent part, that new and material evidence had not been received to reopen a previously denied claim for service connection for hearing loss. In September 2018, the Board reopened the Veteran’s previously denied claim and remanded it to the agency of original jurisdiction (AOJ) for consideration on the merits. After taking further action, the AOJ denied the claim in a June 2020 supplemental statement of the case (SSOC) and returned the case to the Board. Entitlement to service connection for hearing loss is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the Veteran does have a current hearing loss disability as defined by VA regulation. However, no such disability was demonstrated during service or for years thereafter. The Veteran has contended that his current hearing loss disability is due to in-service noise exposure, to include being exposed to artillery fire while serving in Vietnam. The Board previously accepted his account of harmful noise exposure during service, noting that his personnel records reflect that he served in the Army as a field artilleryman. A September 2009 VA examination report is of record which contains a medical opinion unfavorable to the Veteran’s claim. However, the Board finds that a new examination and opinion is warranted. In pertinent part, the September 2009 examiner noted that a February 1968 audiological evaluation, just prior to discharge, indicated normal hearing sensitivity. In so doing, however, the examiner did not discuss the medical significance, if any, of the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for service separation. Further, in a July 2020 written brief, the Veteran’s accredited representative identified medical treatise evidence which purportedly supports the proposition that hearing loss can have a gradual, or delayed, onset following significant noise exposure. The September 2009 VA examiner did not have the opportunity to consider such evidence. Additional development is required. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA audiology examination. The examiner should review the record. All indicated tests (including puretone audiometry and Maryland CNC speech discrimination testing) should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a hearing loss disability in either ear that had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to include his conceded in-service exposure to noise. In so doing, the examiner should address the fact that no audiometric data were recorded at 3000 Hertz for either ear when the Veteran was examined for separation. The examiner should specifically discuss whether, in the absence of audiometric data at 3000 Hertz, it is possible to determine whether the Veteran’s hearing was normal at that frequency at the time of separation, and whether it is possible to determine whether any threshold shifts occurred at that frequency during service. The examiner should also address the medical treatise evidence cited by the Veteran’s representative in a July 2020 written brief, which purportedly supports the proposition that hearing loss can have a gradual, or delayed, onset following significant noise exposure. The examiner should refrain from placing any reliance on the 2005 study from the Institute of Medicine, pertaining to delayed onset of hearing loss, which the Court has determined contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. A complete rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.