Citation Nr: 0004537 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-03 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from September 1944 to November 1946. The appeal arises from the June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, in pertinent part denying service connection for bilateral defective hearing. The Board notes that while the veteran in his VA Form 9 requested a personal hearing before a hearing officer at the RO, several were scheduled and each was canceled by the veteran's representative. Most recently in February 1999 the veteran's representative informed that the veteran did not desire a hearing at that time. Accordingly, as the record now stands, no hearing is required for development of the current appeal. REMAND The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). A VA audiometric examination in November 1998 contained pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 35 45 60 LEFT 15 15 20 40 45 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. In view of these recent audiometric findings, the veteran suffers from a bilateral defective hearing disability pursuant to 38 C.F.R. § 3.385. The veteran contends that he suffers from hearing loss due to bilateral fungal infections in service. The veteran's service separation examination in September 1946 notes that the veteran was treated for fungus of the right ear in August 1946. However, there is no indication on that examination that the ear fungus had persisted, and no current ear infection was noted on the September 1946 examination. That separation examination noted that the veteran's hearing for whispered voice was 15/15 in each ear, and there is no medical finding of hearing loss within the service medical records contained within the claims folder. However, service medical records within the claims folder do not include a record of the August 1946 treatment for fungal infection of the right ear. The veteran's service Form DD214 informs that the veteran was a supply clerk in service. In March 1948 the veteran submitted an original claim for service connection including for fungal infections of the ears in service in 1946. Later in March 1948, an attempt was made by the RO to obtain service records of treatment including for fungal infections of the ears in 1946. However, a reply to that request was received in April 1948 informing that no medical records pertaining to such treatments were found. By an April 1948 RO rating decision the veteran was granted service connection for a scarred left eardrum. Service connection for fungal infections of the ears was denied by that rating decision. Upon a VA examination for diseases of the ears in December 1998, the examiner found moderate sensorineural hearing loss bilaterally with increasing speech recognition thresholds in the higher frequencies, with speech discrimination scores of 88 percent in the right ear and 65 percent in the left ear. It seems likely from the audiometric chart for the November 1998 audiometric examination to which the December 1998 ears examiner was apparently referring, that the December 1998 examiner merely misread the chart, as the chart shows an 88 percent speech discrimination in the right ear and 96 percent discrimination in the left ear. The situation is further complicated by a copy of the December 1998 VA examination later submitted into the claims folder bearing an addendum and labeled at the very top of the first page "CORRECTED EXAMINATION." The hand-written addendum, dated February 8, 1999, reads, "Probable some noise trauma while on active duty - probably has contributed to hearing loss. No relationship to fungal infections." However, this addendum is accompanied by an illegible signature. It is unclear from the record whether the person signing the addendum was a VA audiologist, a VA physician, or a person not affiliated with the VA. If the February 1999 addendum were by a VA physician or audiologist, the claim for service connection for bilateral defective hearing would be well grounded. As the identity of the person who wrote the addendum remains a mystery, the claim is potentially well grounded at the present time. Remand is in order to clarify this question of authorship and develop the claim accordingly. The case is therefore REMANDED to the RO for the following development: 1. As an initial matter, the claims folder should be returned to the December 1998 VA examiner, so that the examiner may clarify whether the finding of a 65 percent speech discrimination score for the left ear was merely a misreading of the November 1999 audiometric findings. If so, the December 1998 examiner should specify whether any findings or conclusions from December 1998 are different in light of the actual November 1998 speech recognition score of 96 percent. If not, the December 1998 examiner should specify the source of this left ear speech recognition score of 65 percent. 2. Next, the RO should determine who wrote the February 1999 addendum to the December 1998 VA examination for diseases of the ears, if possible. If the author is a VA medical practitioner (whether a VA audiologist, a VA otolaryngologist, any other VA physician, or a VA nurse), then the veteran should be afforded a VA examination by an otolaryngologist. That examining physician should be given the claims folder, including a copy of this remand, for review prior to the examination, and should specify on the examination report that the claims folder has been reviewed. The examiner should determine the nature and etiology of the veteran's bilateral defective hearing. Specifically, he should provide an opinion as to whether it is at least as likely as not that the veteran's bilateral defective hearing developed during the veteran's period of service. The examiner must also address the opinion expressed in the February 1999 addendum. 3. If the author of the February 1999 addendum is someone other than a VA medical practitioner, then no further medical examination is required. 4. Thereafter, the RO should readjudicate the remanded issue. If the determination remains adverse to the veteran for either ear, he and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to procure clarifying data and to comply with precedent decisions of the Court. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).