Citation Nr: 21030175 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-59 092 DATE: May 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to an increased rating for unspecified anxiety disorder is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from December 2015 and November 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In March 2021, the Board notified the Veteran that it was unable to produce a hearing transcript because of audio malfunctions; the Board offered him an opportunity to have another hearing, if the Veteran responded within 30 days. See Hearing Related (March 2021). As the Veteran did not respond within the 30-day timeframe, the Board assumes that he does not desire another hearing and will proceed with the adjudication of the claims. 1. Entitlement to service connection for bilateral hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran has served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran seeks service connection for bilateral hearing loss, which he asserts was caused by in-service noise exposure from artillery fire during service in the Republic of Vietnam. As an initial matter, the Board finds that the Veteran has a current hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown by a July 2015 VA examination. Moreover, service personnel records note the Veteran received a sharpshooter medal for the rifle and combat infantryman badge during service and his military occupational specialty was light weapons infantryman. Thus, the question becomes whether the Veteran's bilateral hearing loss is related to service. On this question, there are opinions for and against the claim. The July 2015 VA examiner explained that the Veteran's separation examination revealed normal hearing sensitivity and no significant threshold shirt. In a December 2015 addendum opinion, the examiner opined that despite the Veteran's history of combat noise exposure, it is less likely than not the Veteran's hearing loss is related to service. In October 2019, the Veteran submitted a private audiological examination and opinion. The audiologist opined that the Veteran's bilateral hearing loss is more likely than not due to the hazardous noise exposure he experienced during service. Upon review of the record, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his military service. Accordingly, affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to an increased rating for unspecified anxiety disorder At the August 2019 Board hearing, the Veteran requested withdrawal of the appeal of entitlement to an increased rating for unspecified anxiety disorder. However, as the transcript could not be prepared, this request was not reduced to writing and cannot be accepted at this time. On remand, the Veteran should be asked whether he still wishes to withdraw that appeal. If he does not respond or indicates that he wants to continue the appeal, then additional development is needed. In this regard, the last treatment records in the claims file are from March 2017 and the last examination was conducted in May 2016. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative to determine whether he still wishes to withdraw the appeal for an increased rating for unspecified anxiety disorder. If a withdrawal of appeal is still desired, they should be requested to indicate such in writing. 2. If there is no response to the above request or if the Veteran wishes to continue his appeal for an increased rating, obtain updated VA treatment records, and ask the Veteran to identify any private mental health treatment providers he sees. After securing any necessary release, relevant records should be requested. If any requested records are not available, the Veteran should be notified of such. 3. If there is no response to the above request in Number 1 or if the Veteran wishes to continue his appeal for an increased rating for unspecified anxiety disorder, schedule the Veteran for a VA mental health examination to determine the current severity of his PTSD. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.