BVA9506465 DOCKET NO. 93-08 753 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from July 1970 to April 1973 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (the Board) from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its February 1992 determination, the RO denied service connection for hearing loss. REMAND Initially, the Board has found that the appellant's claim for entitlement to service connection for a hearing disability is well-grounded in that his claim is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). The record reflects that evidence of hearing loss has been shown at various intervals both service and post-service. Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The RO denied service connection for hearing loss in its February 1992 determination. The RO explained that although the appellant showed hearing loss in his discharge examination in 1973, the condition was acute as shown by audiometric examination of 1977 and 1982, which reflected that the appellant's hearing was normal. It was noted that hearing loss by VA standards was not shown until an examination in 1986. The RO concluded that aggravation was not shown during the appellant's second period of service. Service connection for a hearing loss disability may be granted if the disability resulted from service, if a pre-existing hearing loss disability was aggravated by service, or if sensorineural-type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). Service connection for impaired hearing shall not be established when the thresholds for the frequencies of 500, 1,000, 2,000 3,000 and 4,000 hertz are all less than 40 decibels, the thresholds for at least three of these frequencies are 25 decibels or less, and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385 (1993). The Board believes that there are several unresolved issues in this case and is unable to make a conclusive determination regarding the issue of service connection for hearing loss based upon the current record. The appellant served two separate periods of service, each of which should be separately evaluated. The Board is also of the opinion that the condition of each ear should be separately evaluated. Further, the history of audiological testing shown by the record is somewhat inconsistent and difficult to reconcile. The Board is of the opinion that a review of the history of the appellant's hearing loss is helpful in this case, since numerous audiological tests have been conducted within a period of over twenty years. In July 1970, an enlistment examination for the appellant's first period of service was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 25 LEFT 25 15 25 15 No disqualifying defects were noted and the appellant was deemed qualified for enlistment. In November 1971, a periodic examination was conducted during which the appellant's hearing was evaluated as 15/15, which is normal. Hearing loss is certainly shown in the separation examination conducted in April 1973. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 45 30 25 LEFT 35 25 35 35 The examiner noted possible bilateral hypoacusis. A clinical entry dated late April 1973 requested that in light of the findings, an audiogram be repeated and evaluated. However, it does not appear that this was ever done, since the record shows no evidence of an audiological testing shortly thereafter. In September 1977, an enlistment examination for reserve duty was performed. No defects were noted. The appellant's hearing was completely normal. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 LEFT 20 15 10 5 In February 1982, a periodic examination was conducted. No hearing defect was noted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 15 10 15 LEFT 15 10 15 25 25 In February 1986, a periodic examination was conducted. The examiner noted that the appellant was healthy other than hearing loss, and recommended that further hearing tests be done within 30 days, and that a doctor review the previous hearing tests. No records indicating that this recommendation was followed are on file. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 45 45 45 LEFT 30 15 35 50 50 An audiological examination dated March 1990 is of record. However, the appellant's name is not on the audiogram nor is it clear where it was performed or by whom. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 40 50 50 LEFT 30 15 35 50 45 In July 1990, a retention examination was conducted. The appellant was deemed qualified for retention, but, clearly some hearing loss is shown upon the appellant's re-enlistment. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 50 50 LEFT 30 15 40 50 45 The appellant's separation examination for his second period of service was conducted in April 1991. Due to the results of the audiological testing, a recommendation was made for further audiological testing. It was recorded on the examination report that all conditions existed prior to service. The examiner noted "mild hearing loss from Vietnam." Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 40 50 55 LEFT 30 20 25 50 50 Further audiological testing was conducted both on April 30, 1991 and on May 2, 1991. On the authorized audiological evaluation on April 30, 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 40 50 55 LEFT 30 20 35 50 50 It was noted that the appellant was routinely exposed to hazardous noise. A handwritten note on the examination report showed that the patient stated that his hearing was getting worse, but that there were no medical records to review. On May 2, 1991, another audiological examination was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 50 55 LEFT 25 20 35 50 45 A VA examination was conducted in November 1991. The is most recent evidence of record with respect to the appellant's hearing condition. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 40 50 LEFT 20 40 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear. Hearing was essentially normal in the lower frequencies. However, bilaterally, a mild to moderate high frequency sensorineural hearing loss was shown from 2000 Hz and thereafter. A personal hearing was conducted at the RO in April of 1992. The appellant revealed that he was currently employed as a maintenance worker. The appellant testified that he was first told he had a hearing problem in April 1991. He stated that he had a little bit of hearing loss in Vietnam, but, he was told that it would go away. Given the number of tests conducted and the varying results shown, it is crucial that an examiner have access to and review the entire history of the appellant's hearing condition so that the inconsistencies shown by the audiological examinations over the years can be explained and clarified. The Board is also of the opinion that a thorough and contemporaneous audiological examination would be of assistance to the Board in rendering a determination in this case, especially considering that hearing in the 500 Hz range was not tested upon the most recent examination as currently required under 38 C.F.R. § 3.385. Additionally, that examination is now more than three years old. Littke v. Derwinski, 1 Vet.App. 90 (1990, 1991). 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, the case is REMANDED to the Regional Office (RO) for the following development: 1. The veteran should be contacted and asked to provide the names, addresses, and dates of any private physicians/facilities who treated him after service for his hearing problems. He should also be requested to sign and submit release forms giving his permission for the release of medical records to VA. The RO is then asked to obtain these records 2. The RO should obtain copies of any VA outpatient examination and treatment records which pertain to hearing loss, subsequent to November 1991. 3. After all the above actions are accomplished and the records added to the file, the appellant should be scheduled for a special VA ear, nose and throat examination and an audiological evaluation for compensation purposes. The claims folder should be provided to the examiner to permit a review of the veteran's medical history. The examiners is requested to offer opinions on the following issues: a. Does the enlistment examination of July 1970 show that any hearing loss, particularly of the left ear, pre-existed service? b. Does the hearing loss shown by the April 1973 discharge examination after the first period of service reflect an acute or chronic hearing condition, given that the results of this testing vary so greatly from the tests conducted in 1977 and 1982? c. As shown by all the audiometric testing of record, did the appellant's hearing undergo an increase in severity during his second period of active service? d. What is the current assessment of the appellant hearing condition as shown by audiometric testing for the frequencies of 500, 1,000, 2,000 3,000 and 4,000 hertz and speech recognition scores? It is requested that each ear be considered separately regarding these issues. Thereafter, the case should be reviewed by the RO. If the benefits sought are not granted, a supplemental statement of the case should be issued to the appellant and his representative and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this specific issue. RICHARD B. FRANK 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. 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) (1994).