190503-13751

• Court: Board of Veterans' Appeals
• Decided: May 29, 2020
• Docket: 190503-13751
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 05/29/20 Archive Date: 05/29/20

DOCKET NO. 190503-13751 DATE: May 29, 2020

REMANDED

Service connection for right ear hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1971 to September 1973.

The Board notes that the rating decision on appeal was issued in August 2017. In November 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). A Higher Level Review rating decision was issued in February 2019. The Veteran appealed to the Board in May 2019 and selected the Evidence Review docket.

1. Service connection for a right ear hearing loss disability is remanded.

The issue of entitlement to service connection for a right ear hearing loss disability is remanded to correct a duty to assist error that occurred prior to the November 2018 opt-in to the modernized review system. The Agency of Original Jurisdiction (AOJ) obtained an October 2018 medical opinion. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran’s right ear hearing loss disability had its onset in service. Specifically, VA’s hearing loss regulation, 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Although the examiner opined that there was no threshold shift during service, the examiner did not address whether the hazardous noise exposure in service is otherwise related to service. In this case, the service separation examination reported a diagnoses of bilateral high frequency hearing loss, left ear greater than right ear. The examiner did not address this diagnosis.

The matters are REMANDED for the following action:

1. Obtain an addendum to address the nature and etiology of the right ear hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to hazardous noise in service. The examiner is asked to address threshold shifts and also whether any hearing loss may otherwise be causally related to service, especially in light of the separation examination’s diagnosis of bilateral high frequency hearing loss, left ear greater than right ear.

A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board A. Rocktashel, 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.