Citation Nr: 21069465
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 19-29 254
DATE: November 18, 2021

REMANDED

Entitlement to service connection for a bilateral hearing loss disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1967 to May 1967 and from May 1968 to October 1969.  This matter came before the Board of Veterans Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned Veteran's Law Judge during a November 2021 hearing.  

1. Entitlement to service connection for a bilateral hearing loss disability 

An October 2018 VA examination diagnosed bilateral sensorineural hearing loss but found that it was not due to service.  As a rationale, the examiner stated that the Veteran's separation examination in 1969 showed that hearing thresholds were within normal limits.  An opinion based on the absence of a disability in service, as this one, is inadequate.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  This is particularly case here as the 1969 separation examination that is the sole piece of evidence referenced in the opinion did not include testing at the 3000 Hz level, and no audiometric testing was conducted at entrance.  

If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385, the rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Hensley, 5 Vet. App. at 159.  Here, the Veteran's MOS of cannoneer and the October 2018 audiometric findings meet those requirements, but the examination report is silent for any indication that examiner considered in-service noise exposure or the use of noise protection, whether there was a threshold shift or other evidence of diminished hearing in service, or whether there was noise exposure or other intervening causes after service.  Remand for a new examination is therefore required.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination, from a different examiner than the one who conducted the October 2018 examination, to determine the etiology of his bilateral hearing loss disability.  The examiner should review the file and provide a complete rationale for all opinions expressed.  

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include regular exposure to artillery fire as part of his MOS.  The opinion should specifically address the question of acoustic trauma and any evidence of diminished hearing in service, including any lay statements of record, such as the Veteran's statements regarding the onset and persistence of his symptoms.  

2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Arnold

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.