Citation Nr: 21076623 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-49 844 DATE: December 27, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active military service from May 1968 to May 1974, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran asserts that his bilateral hearing loss is related to noise exposure during service. Specifically, he asserts that he was frequently exposed to mortar, howitzer, small arms fire, and other artillery fire during his time in Vietnam. The Board notes initially that, generally, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111 (2018). When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, the VA must show, by clear and unmistakable evidence, both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. 38 U.S.C. § 1111 (2020); Wagner, 370 F.3d at 1096. The Board next notes that, prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). To facilitate data comparison, the ASA standards have been converted to the International Organization for Standardization American National Standards Institute (ISO-ANSI) standards. The audiometric data recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 ADD 15 15 10 10 10 5 10 10 After conversion to ISO-ANSI standards, the Veteran's December 1966 enlistment audiogram results were are as follows: Hertz 500 1000 2000 3000 4000 Right 20 20 20 45 50 Left 15 15 15 40 50 Based on the December 1966 audiogram results, the Veteran had bilateral hearing loss for VA purposes upon his entrance into active service. See 38 C.F.R. § 3.385 (2020). As bilateral hearing loss was noted at service entrance, the presumption of soundness does not apply. 38 C.F.R. § 3.304(b); McKinney v. McDonald, 28 Vet. App. 15 (2016). As such, service connection for bilateral hearing loss must be considered on the basis of in-service aggravation of this pre-service disability. Id. In April 2017, the Veteran was afforded a VA audiological examination. At that time, he had bilateral hearing loss for VA purposes. The examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of his military service. The Board finds that the April 2017 VA examiner's opinion is inadequate as the examiner used the incorrect standard to evaluate the Veteran's bilateral hearing loss. Additionally, the Veteran's service personal records contain U.S. Army National Guard (ANG) Retirement Point Statements from periods of April 1981 to May 1988. He also has a discharge order showing that he was released from the ANG in November 1988. His ANG records have not been associated with the claims file. Thus, the Board finds that remand is warranted to obtain an addendum opinion regarding whether the Veteran's preexisting bilateral hearing loss was aggravated by service, obtain any outstanding service records, and verify all periods of active duty for training (ACDUTRA) and in active duty training (INACDUTRA) during his ANG service. See also 38 C.F.R. § 3.306 (2020); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The matters are REMANDED for the following action: 1. Contact the appropriate Federal records repository and request the Veteran's complete service treatment records and service personnel records from his Army National Guard service. Verify all of the Veteran's periods of ACDUTRA and INACDUTRA in the Army National Guard. A copy of any request(s) for these records, and any reply, to include any records obtained, should be included in the claims file. 2. Then, forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's bilateral hearing loss. If possible, this opinion should be provided by a clinician other than the April 2017 clinician. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral hearing loss, which existed prior to active service, was aggravated by service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bilateral hearing loss, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, Associate 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.