BVA9504323 DOCKET NO. 93-11 688 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for left ear hearing loss disability. 2. Entitlement to an increased (compensable) evaluation for right ear hearing loss disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs INTRODUCTION The veteran had active duty from May 1972 to May 1975, and from November 1976 to November 1985. This appeal is taken from a Regional Office (RO) determination in May 1992 which denied service connection for left ear hearing loss disability, and granted service connection for right ear hearing loss disability, and assigned a noncompensable evaluation. For reasons which will be outlined in the Remand portion of this decision, appellate consideration of the issue of entitlement to an increased (compensable) evaluation for right ear hearing loss disability is deferred. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that any left ear hearing loss which may have existed at the time of entrance into his second period of active service was aggravated therein, so as to warrant a grant of service connection. It is also asserted that his hearing loss disability warrants a compensable evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for left ear hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the issue of entitlement to service connection for left ear hearing loss disability has been obtained. 2. Pre-existing left ear hearing loss disability increased during the veteran's second period of service. CONCLUSION OF LAW Left ear hearing loss disability was aggravated during active service. 38 U.S.C.A. § § 1110, 1131, 1153, 5107 (West 1991); 38 C.F.R. § 3.303, 3.306, 3.385 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has presented a "well grounded" claim under 38 U.S.C.A. § 5107(a) (West 1991) relative to the issue of entitlement to service connection for left ear hearing loss disability; that is, he has presented a claim that is plausible. He has not indicated that any records of probative value that are not already associated with his claims folder and which have not previously been sought are available. The Board accordingly finds that the duty to assist him in the development of his claim, as mandated by the provisions of 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the veteran had two separate periods of active duty service. Service medical records are negative for any complaints or findings of left ear hearing loss during the veteran's first period of active duty, which ended in May 1975. In particular, audiological evaluation performed at the time of examination for separation from service, in April 1975, demonstrated no left ear hearing loss. However, on examination for reenlistment, performed in October 1976, left ear hearing loss disability was demonstrated. Specifically, audiometry evaluation at that time demonstrated that the left ear pure tone threshold at 2000 hertz was 40 decibels. Left ear hearing loss disability was also demonstrated on audiological evaluation performed at the time of examination for separation from service, in September 1985. Significantly, the reported audiometry findings in September 1985 reflected a change in the left ear pure tone threshold reported at 2000 hertz, of 60 decibels, as compared with the aforementioned audiometry findings indicated on reenlistment examination in October 1976. Moreover, the reported findings on initial VA audiology examination performed subsequent to service, in March 1992, are consistent with an increase in left ear hearing loss disability, as compared with the reported audiometry findings on reenlistment examination in October 1976. The provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 provide that a pre-existing injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The clinical demonstration of a change in the left ear pure tone threshold level at 2000 hertz, from 40 decibels on reenlistment examination, to 60 decibels on separation examination, represents an increase in the left ear hearing loss disability so as to constitute aggravation of that disability. Hensley v. Brown, 5 Vet.App. 155 (1993). Hence, service connection is warranted for left ear hearing loss disability. ORDER Entitlement to service connection for left ear hearing loss disability is granted. REMAND As stated above, service connection has been granted for left ear hearing loss disability in addition to the previously service- connected right ear hearing loss disability for which the veteran seeks an increased evaluation. The RO must be afforded an opportunity to evaluate the veteran's service-connected bilateral hearing loss disability in light of Bernard v. Brown, 4 Vet.App. 384 (1993) prior to the Board's adjudication of any such increased rating issue. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for right ear and left ear hearing loss disability since February 1992. After securing the necessary release, the RO should obtain the records of all such treatment. 2. The veteran should be afforded a VA audiology examination to determine the nature and severity of his service- connected bilateral hearing loss disability. The claims folder should be made available to the examiner for use and study prior to the examination. 3. After the development requested above has been completed to the extent possible, the RO should again review the record, including the additional evidence, and adjudicate the issue of entitlement to an increased rating for bilateral hearing loss disability. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. Appellate consideration of the issue of entitlement to an increased evaluation for hearing loss disability is deferred pending completion of the above requested development. U. R. POWELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: As to the service connection issue, under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. As to the increased rating issue, under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).