Citation Nr: 21011661 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-11 552 DATE: March 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the U.S. Army from May 1968 to May 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision. The matter was remanded in March 2015. A March 2019 Board decision (by a Veterans Law Judge other than the undersigned) denied the matter. A June 2020 United Stated Court of Appeals for Veterans Claims (CAVC) memorandum decision reversed the March 2019 Board finding that the presumption of soundness did not attach to the Veteran’s left ear hearing loss, and set aside the Board’s denial of service connection for a bilateral hearing loss disability. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss related to service. Initially the Board notes two things (1) the Veteran’s military occupational specialty (MOS) was combat engineer, and (2) the Veteran’s hearing acuity did not meet the criteria of 38 C.F.R. § 3.385 for a VA hearing disability at entry. The threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A July 1967 enlistment hearing test showed a threshold of 30 decibels in the left ear at 4000 Hz. However, when the level of hearing loss does not meet the VA’s definition of disability, the level of hearing loss is not a defect. McKinney v. McDonald, 28 Vet App 15, 22-27 (2015). Therefore, based on the Veteran’s MOS and audiometry findings at entry it is conceded that the Veteran was exposed to acoustic trauma in service, and the Veteran is presumed sound with respect to his hearing upon entry because the hearing acuity did not meet the VA criteria for disability. On February 2012 examination, the examiner was unable to provide test results due to inconsistencies in the responses provided. A March 2013 examination showed bilateral hearing loss for VA purposes. The March 2015 remand noted a depreciation in the Veteran’s hearing during service, and ordered an examination that considered the Veteran’s lay reports of worsening hearing in service and in the years after service. On June 2015 examination, the examiner noted the Veteran’s test results were not valid for rating purposes and noted apparent inconsistencies in the responses provided on examination. The examiner opined that it was less likely than not that the Veteran’s hearing loss disability was related to service. On October 2015 addendum medical opinion, the clinician again opined that it was less likely than not that the Veteran’s bilateral hearing loss disability was related to service. However, the clinician failed to consider the Veteran’s lay statements of worsening hearing in service. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. It is for this reason that a new medical examination is necessary. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and likely etiology of the Veteran’s bilateral hearing loss. Upon examination and interview of the Veteran (including obtaining information related to the Veteran’s post-service employment), and review of the entire claims file (noting that it is conceded that the Veteran was exposed to acoustic trauma in service), the examiner should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral hearing loss was caused by service, including conceded in-service noise exposure? (b.) Is it at least as likely as not that the Veteran’s bilateral hearing loss (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service (one year), or (3) was noted during service with continuity of the same symptomatology since service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.