Excerpt from decision below:
“Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.
=========================
“Does 38 C.F.R. § 3.385 (1991) establish that service connection for hearing loss may be awarded only when the level of hearing loss evidenced by audiometric and speech recognition testing meets that regulation’s threshold criteria at the time of separation from service; or may a veteran establish service connection where, as here, there is evidence of worsening of hearing in service (but not meeting the regulation’s threshold criteria) and some years after service the veteran’s hearing loss meets the regulation’s threshold criteria? If it is the latter, the Secretary should further address the issue of the evidence required to establish service connection of a hearing loss meeting the regulatory criteria several years after separation from service. See 38 C.F.R. § 3.303(a), (b), and (d).
In his response, the Secretary states that section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. He asserts that the purpose of section 3.385 is to establish guidelines for determining when a hearing “disability” is present within the meaning of 38 USCA. § 1110 (West 1991), so that service-connected disability compensation may be awarded, and that, “[r]egardless of when the regulation’s threshold criteria are met, a determination must be made as to whether the ‘disability’ was incurred in or aggravated by service.” In describing the evidence necessary to establish service connection when hearing disability is not demonstrated on testing at separation from service, the Secretary states:
[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue. See 38 C.F.R. § 3.303 (principles of service connection) . . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for a “disability” under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Appellee’s Response at 7-8.
The Court agrees with the Secretary’s assertion that section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of “service connection”, it operates to establish when a measured hearing loss is (or, more accurately, is not) a “disability” for which compensation may be paid, provided that the requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307. Cf. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (“establishing service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service”); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (“there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury”).
Therefore, when 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. As the Court stated in Godfrey, supra, where there was no evidence of the veteran’s hearing disability until many years after separation from service, “[i]f evidence should sufficiently demonstrate a medical relationship between the veteran’s in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service; the requirements of section 1110 would be satisfied.” See also Cosman, supra (service connection may be established for psychiatric disorder manifest many years after separation); Triplette, supra (same); Douglas, supra (same as to carcinoma manifest many years after separation).
Applying this analysis to the instant case, it is clear that section 3.385 does not prohibit an award of service-connected disability compensation for the veteran’s bilateral hearing loss.”
=======================
No. 91-1179
V.
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
and
On Appellee’s Motion for Summary Affirmance
(Decided May 18, 1993 )
Before NEBEKER, Chief Judge , and MANKIN and STEINBERG, Associate Judges.
STEINBERG, Associate Judge: The appellant, Vietnam veteran Danny J. Hensley, appeals from a March 13, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying service-connected disability compensation for bilateral hearing loss. The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance. For the reasons set forth below, the Court will vacate the BVA decision and remand the matter for readjudication.
I. Background
R. at 13. On his applications to the Department of Veterans Affairs (VA) for service-connected disability benefits, he reported having served on an aircraft carrier and having incurred hearing loss as the result of working on and around jet aircraft in service. R. at 16, 22. Although the service records before the Court do not specifically mention service on an aircraft carrier, his service separation report states that his last duty assignment was with an attack squadron and that he had nearly three years of foreign and/or sea service during the Vietnam Conflict. R. at 35.
At his August 1969 examination for entrance onto active duty, the following threshold hearing levels were reported on audiometric testing:
50010002000 3000 4000 (Hertz)
RIGHT:10 -5 -10 — -5 (decibels)
LEFT:10 -5 -10 — 60
R. at 2. The examiner diagnosed “Def[ective] hearing”.
Ibid. Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). As explained in part I.A., below, however, hearing
loss does not constitute a disability for VA purposes when the threshold levels at 500, 1000,
2000, 3000, and 4000 Hz are all less than 40 dB and at least three are 25 dB or less.
See
38 C.F.R. § 3.385 (1992). The record does not contain any records of treatment for hearing
problems in service. At his August 1973 separation examination, the veteran’s hearing
levels were measured on audiometric testing as follows:
50010002000
3000
4000
(Hz)
RIGHT:35 25 15 5 10 (dB)
LEFT: 5 0 020 70
R. at 10. With the exception of the left-ear result at 500 Hz, all of the scores showed a
worsening of hearing at separation when compared with the scores at entrance. The
examiner diagnosed “HFHL [high-frequency hearing loss] both ears.”
Ibid.
In January 1990, the veteran filed with a VA regional office (RO) an application for
service-connected disability compensation for hearing loss. R. at 16. On his application, he
reported having received treatment for his hearing loss since December 1989. R. at 17. The
RO received reports of a December 1989 private physical examination and of December
1989 and January 1990 private audiometric testing. R. at 19-20, 34. In the report of the
physical examination, the examiner diagnosed “bilateral [HFHL]” due to “probable noise
and 85 dB at 4000 Hz and 65 and 40 dB at 3000 Hz in the right ear; none of the other
recorded thresholds was above 30 dB. R. at 19-20. On the January 1990 report of
audiometric testing, the examiner noted that the veteran’s noise exposure had included
“military — jet aircraft[,] some equipment/machinery[, and] hunting”, and that his last
exposure had been in October 1989. R. at 20. In a January 1990 letter to VA, the examiner
indicated that the veteran had bilateral sensorineural hearing loss, and stated: “patient to
wear ear protection in noise — high risk for noise damage because of years with jet aircraft,
machinery . . . .” R. at 31.
The veteran was given a VA audiometric examination in April 1990, at which time
his hearing levels were reported as follows:
50010002000
3000
4000
(Hz)
RIGHT:25 20 15 5 40 (dB)
LEFT: 5 10 045 90
R. at 25-26. Except for the scores at 4000 Hz in both ears and 3000 Hz in the left ear, the
veteran’s hearing was generally not worse than it had been at separation in 1973. His score
on a “speech recognition” test was 96%.
Ibid
. He was diagnosed with “bilateral, high-
frequency, sensorineural hearing loss.” R. at 25. The examiner noted that he had had an
18-to-19-year history of unilateral loss in the left ear. R. at 26.
In a June 1990 decision, the RO denied service connection for bilateral HFHL,
concluding that hearing in the right ear had been within normal limits at separation, and
that, although there was hearing loss in the left ear at separation, the record of the entrance
examination showed that such hearing loss was present at entry and that the condition was
not aggravated beyond the normal progression of the condition. R. at 36-37. The veteran
filed a Notice of Disagreement in June 1990 in which he stated that the examination at
separation from service did not sufficiently evaluate whether his hearing loss may have been
related to his exposure to jet engine noise and that the examiner had told him then that his
discharge would be delayed if he wanted to pursue that issue. R. at 42-43. After the RO
issued a Statement of the Case, he submitted a Form 1-9 (Appeal to the BVA), again
asserting that his in-service noise exposure had caused hearing loss. R. at 50-51.
In the March 13, 1991, BVA decision here on appeal, the Board denied service
connection for hearing loss.
Hensley
, BVA 91-_____ (Mar. 13, 1991). With respect to the
right ear, the Board concluded that “the veteran’s hearing acuity in his right ear was within
normal limits during service, and [HFHL] in the right ear was not present until many years
after service.”
Id.
at 5. With respect to the left ear, the Board noted that the threshold
levels of 60 dB and 70 dB in the 4000 Hz range recorded on the entrance and separation
audiometric tests, respectively, were outside of normal limits and represented a 10-decibel
diminishment in hearing acuity at that level during service.
Id.
at 4. The Board concluded,
however, that the recorded diminishment in hearing during service was “of minimal
significance in demonstrating an increase in the severity of any preservice hearing deficit”
and that the evidence, therefore, did not demonstrate that the veteran’s preexisting right-ear
hearing disability had been aggravated during service.
Ibid.
On appeal to this Court, the appellant asserts that the BVA erred in concluding that
his hearing was “within normal limits” upon separation from service and in failing to
consider whether any hearing loss becoming manifest after his separation from service was
had filed a motion for summary affirmance, the Court ordered the Secretary to file a
supplemental memorandum of law; the Court also permitted appellant to file a response to
that memorandum. The Secretary filed his memorandum in October 1992, and the
appellant filed a response in December 1992. The Court appreciates the contributions of
both parties.
I. Analysis
A. Requirements for Establishing Service Connection for Hearing Loss
Service connection for VA disability compensation purposes will be awarded for any
disease or injury that was incurred or aggravated during the veteran’s active service or was
initially manifested to a degree of 10% or more within an applicable presumption period.
See
when a disease was not initially manifested during service or within the applicable
presumption period, “direct” service connection may nevertheless be established by
evidence demonstrating that the disease was in fact incurred or aggravated during the
veteran’s service.
See
Cosman v. Principi
, 3 Vet.App. 503, 505 (1992);
Triplette v. Principi
, 3 Vet.App. 370, 375
(1992);
Godfrey v. Derwinski
, 2 Vet.App. 352, 356 (1992);
Douglas v. Derwinski
, 2 Vet.App.
103, 108-09 (1992).
Entitlement to service connection for impaired hearing is subject to the additional
requirements of 38 C.F.R. § 3.385 (1992), which provides:
Service connection for impaired hearing shall not be established when
hearing status meets pure tone and speech recognition criteria. Hearing
status shall not be considered service-connected when the thresholds for the
frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are all less than 40
decibels; the thresholds for at least three of these frequencies are 25 decibels
or less; and the speech recognition scores using the Maryland CNC Test are
94 percent or better.
In
Ledford v. Derwinski
, 3 Vet.App. 87, 89 (1992), the Court held that the regulation,
although prohibiting an award of service connection where audiometric test scores are within
the established limits, does not prevent a veteran from establishing service connection on
the basis of post-service evidence of hearing loss related to service when there were no
audiometric scores reported at separation from service. The Court noted there that the
Secretary’s stated purpose in promulgating section 3.385 in 1990 was “to establish criteria
for the purpose of determining the levels at which hearing loss becomes disabling” and to
establish “a department-wide rule for making determinations regarding service connection
for impaired hearing”.
Id.
at 89 (quoting 55 Fed.Reg. 12348-02 (1990)). The Court stated:
“In one sense, the regulation mixes apples and oranges in that it uses criteria for hearing
loss to determine service connection and not degree of disability”.
Ibid.
In its August 1992 order in this case, the Court directed the Secretary to file a
memorandum addressing, inter alia, the following issue:
Does 38 C.F.R. § 3.385 (1991) establish that service connection for hearing
loss may be awarded
only
when the level of hearing loss evidenced by
audiometric and speech recognition testing meets that regulation’s threshold
criteria
at the time of separation from service
; or may a veteran establish
service connection where, as here, there is evidence of worsening of hearing
in service (but not meeting the regulation’s threshold criteria) and some years
after service the veteran’s hearing loss meets the regulation’s threshold
criteria? If it is the latter, the Secretary should further address the issue of
the evidence required to establish service connection of a hearing loss meeting
the regulatory criteria several years after separation from service.
See
38 C.F.R. § 3.303(a), (b), and (d).
In his response, the Secretary states that section 3.385 does not preclude an award of service
connection for a hearing disability established by post-service audiometric and speech-
recognition scores, even though hearing was found to be within normal limits on audiometric
and speech-recognition testing at the time of separation from service. He asserts that the
purpose of section 3.385 is to establish guidelines for determining when a hearing
service-connected disability compensation may be awarded, and that, “[r]egardless of when
the regulation’s threshold criteria are met, a determination must be made as to whether the
‘disability’ was incurred in or aggravated by service.” In describing the evidence necessary
to establish service connection when hearing disability is not demonstrated on testing at
separation from service, the Secretary states:
[W]here the regulatory threshold requirements for hearing disability are not
met until several years after separation from service, the record must include
evidence of exposure to disease or injury in service that would adversely affect
the auditory system and post-service test results meeting the criteria of
38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony,
clinical data, diagnoses, and any medical opinions relevant to the issue.
See
38 C.F.R. § 3.303 (principles of service connection) . . . . For example, if the
and audiometric test results reflecting an upward shift in tested thresholds in
service, though still not meeting the requirements for a “disability” under
38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings
meeting the requirements of 38 C.F.R. § 3.385, rating authorities must
consider whether there is a medically sound basis to attribute the post-service
findings to the injury in service, or whether they are more properly
attributable to intercurrent causes.
Appellee’s Response at 7-8.
The Court agrees with the Secretary’s assertion that section 3.385 does not preclude
service connection for a current hearing disability where hearing was within normal limits
on audiometric testing at separation from service. Although that regulation speaks in terms
of “service connection”, it operates to establish when a measured hearing loss is (or, more
accurately, is
not
) a “disability” for which compensation may be paid, provided that the
38 C.F.R. §§ 3.303, 3.307.
Cf. Cuevas v. Principi
, 3 Vet.App. 542, 548 (1992) (“establishing
service connection requires a finding of the existence of a current disability and a
determination of a relationship between that disability and an injury or disease incurred in
service or some other manifestation of the disability during service”);
Rabideau v. Derwinski
,
2 Vet.App. 141, 143 (1992) (“there must be evidence both of a service-connected disease
or injury and a present disability which is attributable to such disease or injury”).
Therefore, when 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. As the Court stated in
Godfrey, supra
, where there was no evidence of the veteran’s hearing disability until many
years after separation from service, “[i]f evidence should sufficiently demonstrate a medical
relationship between the veteran’s in-service exposure to loud noise and his current
disability, it would follow that the veteran incurred an injury in service; the requirements of
section 1110 would be satisfied.”
See also Cosman, supra
(service connection may be
established for psychiatric disorder manifest many years after separation);
Triplette, supra
(same);
Douglas, supra
(same as to carcinoma manifest many years after separation).
Applying this analysis to the instant case, it is clear that section 3.385 does not
prohibit an award of service-connected disability compensation for the veteran’s bilateral
of 40 dB or more at 4000 Hz in both ears. Section 3.385, as relevant here, prohibits a
finding of a hearing disability only where threshold hearing levels at 500, 1000, 2000, 3000,
and 4000 Hz “are
all less than
40 decibels” and at least three of those threshold levels are
25 db or less. 38 C.F.R. § 3.385 (1992) (emphasis added). Where, as here,
any
of the
relevant threshold hearing levels are 40 dB or more, a determination as to whether the
hearing loss is service connected must be made under the statutory and regulatory provisions
governing service connection generally, and the determination of the level of disability due
to any such service-connected hearing loss will be made under 38 C.F.R. § 4.85 (1992)
(“Evaluation of hearing impairment”). Because application of the governing law and
regulation pertaining to service connection yields different analyses with respect to the
veteran’s left-ear and right-ear hearing losses, it is necessary to discuss those claims
separately.
B. Service Connection for Left-Ear Hearing Loss
Pursuant to the standards in section 3.385, the veteran’s hearing in his left ear was
outside of normal limits both upon his entrance into and his separation from service, as
evidenced by threshold hearing levels of 60 and 70 dB, respectively, at 4000 Hz. Section
3.385 establishes that a “disability” will
not
be found to exist when audiometric scores are
within the established limits; it does not by its terms require that a “disability” be
found
to
exist whenever audiometric scores are outside of those limits. However, 38 C.F.R. § 4.85,
which establishes criteria for evaluating the severity of a service-connected hearing disability,
provides for a service-connected disability rating for
any
amount of hearing loss, including
where average puretone decibel loss on audiometric examination is between 0-41 dB.
38 C.F.R. § 4.85, Tables VI, VIa, VII (1992). It is thus apparent, in view of sections 3.385
and 4.85, that the veteran’s left-ear hearing loss constituted a “disability” at both entrance
and separation.
Therefore, because the veteran had a hearing disability upon entry into service, his
entitlement to service connection for that condition must be predicated on a finding that
that condition was aggravated during active service so as to warrant disability compensation
See also
38 C.F.R. § 3.306(b) (1992).
Section 1153 provides:
A preexisting injury or disease will be considered to have been aggravated
by active military, naval, or air 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.
of wartime service:
Clear and unmistakable evidence (obvious or manifest) is required to rebut
the presumption of aggravation where the preservice disability underwent an
increase in severity during service. This includes medical facts and principles
which may be considered to determine whether the increase is due to the
natural progress of the condition.
38 C.F.R. § 3.306(b) (1992). Ratings for disabilities aggravated by service are determined
by “deduct[ing] from the present degree of disability the degree, if ascertainable, of the
disability existing at the time of entrance into active service, in terms of the rating
schedule”. 38 C.F.R. § 4.22 (1992). If the degree of disability at the time of entry is not
ascertainable in terms of the schedule, “no deduction will be made.”
Ibid.
The veteran’s audiometric test results at entrance and separation indicate a 10-
decibel decrease in hearing capacity at 4000 Hz during service. R. at 2, 10. In denying
service connection for left-ear hearing loss on the basis of aggravation, the BVA stated:
In acknowledging a reported diminishment of 10 decibels at 4000 Hz in the
left ear from testing performed upon induction and at separation from service,
this variance is found to be of minimal significance in demonstrating an
increase in the severity of any preservice hearing deficit. Moreover, normal
findings were noted at the other hertz levels of pertinence to demonstrating
hearing loss. Accordingly, the evidence does not reflect an ascertainable
hearing loss upon separation from service that could adequately be
characterized as reflecting an aggravation, or worsening, of the veterans [sic]
preservice hearing capabilities.
Hensley
, BVA 91-_____, at 4. Although this statement is fraught with ambiguity, it appears
that the Board concluded that the recorded decrease in hearing ability did not constitute an
“increase in disability” during service so as to create a presumption of aggravation under
the applicable statutory and regulatory provisions set forth above.
a written statement of the reasons or bases for its findings and conclusions on all material
issues of fact and law presented on the record; the statement must be adequate to enable
a claimant to understand the precise basis for the Board’s decision, as well as to facilitate
review in this Court.
See
Masors v. Derwinski
, 2 Vet.App. 181, 188 (1992);
Hatlestad v.
Derwinski
, 1 Vet.App. 164, 169 (1991) (
Hatlestad I
);
Gilbert v. Derwinski
, 1 Vet.App. 49, 57
(1990). To comply with this requirement, the Board must analyze the credibility and
probative value of the evidence, account for the evidence which it finds to be persuasive or
unpersuasive, and provide the reasons for rejecting any evidence favorable to the veteran.
, 2 Vet.App. 621, 622 (1992);
Abernathy v. Derwinski
, 2 Vet.App. 391,
394 (1992);
Hatlestad I, supra
;
Gilbert, supra
. Moreover, the Board may not base a decision
on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion
only on the basis of independent medical evidence in the record or adequate quotation from
recognized medical treatises.
See Hatlestad v. Derwinski
, 3 Vet.App. 213, 217 (1992)
(
Hatlestad II
);
Colvin v. Derwinski
, 1 Vet.App. 171, 174 (1991);
see also Thurber v. Brown
,
intends to rely on medical evidence, it must give claimant notice of such intent and
opportunity to respond).
In the instant case, the Board failed to provide any reasons or bases to support the
conclusion that the objectively measured worsening of left-ear hearing capacity during
service did not constitute an “increase in disability” requiring application of the statutory
presumption of aggravation. Specifically, in reaching that cursory conclusion, the Board did
not discuss the criteria it used, in terms of the applicable law and regulation, for determining
whether there had been an “increase in disability” during service. Because the veteran’s
service medical records clearly reflect an objectively measurable and measured worsening
of hearing during service, the Board was required to determine whether that worsening
constituted an in-service “increase in disability” within the meaning of section 1153, and to
provide a statement of reasons or bases, explaining the Board’s analysis of all pertinent
evidence in the context of all pertinent law and regulation, sufficient to enable the claimant
and the Court to understand the “precise basis” for the Board’s decision.
Gilbert
,
1 Vet.App. at 56.
Neither the statute nor the regulations set forth the criteria for determining whether
a measured worsening of a disease or injury constitutes an “increase in disability” within
the meaning of section 1153. In
Hunt v. Derwinski
, this Court held that “[t]he term
‘disability’ [in section 1153], as contemplated by VA regulations [(38 C.F.R. § 4.1)], means
‘impairment in earning capacity resulting from such diseases and injuries and their residual
Federal Regulations, “‘represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases and injuries and their residual
conditions in civil occupations’.”
, 1 Vet.App. 292, 296 (1991)
(quoting 38 C.F.R. § 4.1 (1990)). Presumably, then, in instances where VA’s rating
schedule provides a sufficiently comprehensive basis for determining when any measured
worsening of a condition causes a measurable “impairment in earning capacity”, application
of the rating-schedule provisions to the veteran’s measured level of disability at entrance
onto and separation from service will determine whether there was an “increase in
disability”.
However, in
Browder v. Derwinski
, 1 Vet.App. 204, 207 (1991), the Court pointed out
that VA’s schedule of ratings is designed to establish disability ratings for purposes of
paying compensation for disabilities that have already been shown to be service connected,
and that the schedule thus may not in all cases provide an adequate basis for determining
when a disability has increased in severity for purposes of establishing service connection
under section 1153.
See
a schedule for rating disabilities providing “ten grades of disability, and no more, upon
which payments of compensation shall be based”). The
Browder
Court thus held that the
presumption of aggravation may apply “where there was a worsening of the disability
regardless of whether the degree of worsening was enough to warrant compensation”, and
remanded to the BVA a claim where evidence demonstrated a decrease in the veteran’s
right-eye visual acuity in service without discussing whether that increase would have been
cognizable under VA’s rating schedule.
Browder
, 1 Vet.App. at 207.
As noted above, VA’s rating schedule is constructed for the purpose of establishing
levels of disability for compensation purposes based upon “average impairment in earning
Moreover, although section 1155 directs the Secretary to establish in the rating schedule
“ten grades of disability” for evaluating the severity of such conditions, the Secretary has
provided less than ten levels of disability for most of the conditions listed in the schedule.
See generally
38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established
by the Secretary for compensation purposes may not in all cases provide a sufficiently
comprehensive basis for determining when a measured worsening of a particular veteran’s
condition in service constitutes an “increase in disability” for purposes of establishing
service connection through aggravation under section 1153. This would seem to be so where
the next higher rating is more than one decile greater.
Furthermore, the rating-schedule provisions may not in all cases provide the most
accurate or most logical basis for determining whether there has been an “increase in
disability” during service. For example, with respect to organic mental disorders and
psychoneurotic disorders, the rating schedule provides for disability ratings based on a
finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild”
social and industrial impairment.
See
38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992).
In determining whether an organic mental disorder or psychoneurotic disorder was
aggravated during a veteran’s active service many years before, it is certainly reasonable
to suppose that evidence may clearly establish that the disability increased in severity during
service and caused a decrease in the veteran’s earning capacity, although the application
of the above-listed adjectives at entry and at separation from service may not be as clear.
Based upon the foregoing analysis and the Court’s opinions in
Hunt
and
Browder
,
the Court holds that the presence of a ratable increase in disability at separation would be
conclusive of an in-service increase in disability, but the obverse would not be true; that is,
the absence of a ratable in-service increase would not rule out a determination of an
increase in disability. Where the rating schedule does not provide a comprehensive basis
for a BVA determination as to whether a measured worsening of a preexisting condition
in
a particular case
constitutes an “increase in disability” under section 1153, evidence of
record might clearly establish that there has been an “increase in disability” for purposes
of establishing a presumption of aggravation under section 1153 even though it is not clear
that such increase would have resulted in an increased rating under the rating-schedule
provisions for that particular disability.
Therefore, in adjudicating a claim such as the present one for service connection
based on aggravation under section 1153, the Board’s reasons or bases must include an
explanation of the criteria used by the Board to determine whether a measured worsening
of the disability during service constituted an “increase in disability”, and an explanation
of how those criteria apply to the facts of the particular claim being decided. If the Board
determines that application of the rating-schedule criteria is conclusive as to that
determination, the Board must explain why it views those rating-schedule criteria as the only
adequate basis for making that determination and must explain how those criteria apply to
the veteran’s disability as noted at entrance onto and separation from service. If the Board
concludes that the rating-schedule provisions do not provide the only adequate basis for
determining whether there has been an in-service increase in disability under section 1153
from a particular disease or injury during service, the Board must explain the criteria used
to determine whether there has been an “increase in disability” with respect to that
condition as well as the resulting evaluation of the evidence under such criteria.
In the instant case, the Board did not explain the criteria it used to determine
whether there was an increase in disability from the veteran’s left-ear hearing condition
during service, and how, pursuant to such criteria, it concluded that the measured decrease
in left-ear hearing acuity during service did not demonstrate an “increase in disability”
under section 1153. Therefore, remand is required for prompt readjudication and issuance
of a decision supported by reasons or bases consistent with this opinion. If on remand the
Board concludes that the veteran’s left-ear hearing condition did increase in severity during
service, the Board must apply the presumption of aggravation and explain whether or not
that presumption has been rebutted by clear and unmistakable evidence.
See
§ 1153; 38 C.F.R. § 3.306(b). If the Board concludes that the presumption is rebutted
because the in-service increase in disability was due to the natural progress of the disease,
it must point to independent medical evidence or quote recognized medical treatises to
provide adequate support for that medical conclusion.
See
1991);
Thurber, supra;
Hatlestad II, supra
;
Colvin, supra
.
C. Service Connection for Right-Ear Hearing Loss
With respect to the veteran’s right-ear hearing ability, all reported hearing thresholds
were less than 40 dB on audiometric testing at entry and separation and all but one were
25 or less at separation. Therefore, under the standards established by section 3.385, there
was no indication of a right-ear hearing “disability” during service. However, the entrance
and separation audiometric scores revealed a decrease in hearing ability of 15-30 dB at all
reported Hz levels during service (R. at 2, 10), although audiometric scores sufficient to
establish a right-ear hearing disability for which service connection may be awarded
consistent with section 3.385 were not reported until the April 1990 VA examination. R. at
25-26.
On the basis of this evidence, the Court finds a plausible basis for the BVA’s
conclusion that a right-ear hearing disability was not manifested during service or to a 10%
degree during the one-year presumption period following service, and, therefore, that
conclusion is not subject to reversal as a clearly erroneous finding of fact.
See
§ 7261(a)(4) (West 1991);
Gilbert
, 1 Vet.App. at 53. However, that finding does not end the
inquiry. As noted in part II.A., above, a claimant may establish direct service connection
for a hearing disability initially manifest several years after separation from service on the
basis of evidence showing that the current hearing loss is causally related to injury or disease
suffered in service.
See
Godfrey, supra
;
see
also Cosman, supra
;
Triplette, supra
;
Douglas, supra
.
In the present case, the evidence supporting a claim of direct service connection for
a right-ear hearing disability manifested many years after service includes audiometric test
scores showing a 15-30-decibel decline in all recorded threshold hearing levels during service
(R. at 2, 10); the veteran’s statements that he suffered significant noise exposure working
on an aircraft carrier during service (R. at 16, 22, 43, 50-51); the veteran’s service
separation report indicating his service with an attack squadron (R. at 13, 35); and private
including exposure to jet-aircraft noise during service (R. at 31, 34). In light of this
evidence, the Board was required to determine whether the veteran’s current right-ear
hearing disability was causally related to in-service noise exposure. Because the Board
failed to address that question, remand is required for adjudication of that direct service
connection claim. Moreover, because the veteran has submitted “significant evidence”
supporting his claim of service connection for a right-ear hearing disability, the Board must
§ 5107(b) (West 1991) in determining whether the evidence establishes entitlement to
service-connected disability compensation.
, __ Vet.App. __,
evidence in support of an appellant’s claim, as there is here, the Board must provide a
satisfactory explanation as to why the evidence was not in equipoise”);
Gilbert
, 1 Vet.App.
at 54.
III. Conclusion
Based upon the foregoing opinion, the Court denies the Secretary’s ill-advised
motion for summary affirmance, vacates the March 13, 1991, BVA decision, and remands
the matter to the Board for prompt readjudication, consistent with this opinion, on the basis
of all evidence of record and all applicable provisions of law and regulation.
See
Fletcher v. Derwinski
, 1 Vet.App. 394, 397 (1991). “On
remand, the appellant will be free to submit additional evidence and argument”.
Quarles
v. Derwinski
, 3 Vet.App. 129, 141 (1992). A final decision by the Board following the
remand herein ordered will constitute a new decision which, if adverse, may be appealed
to this Court only upon the filing of a new Notice of Appeal with the Court not later than
120 days after the date on which notice of that new decision is mailed to the appellant.
VACATED AND REMANDED.
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