Veteranclaims’s Blog

March 20, 2020

Single Judge Application; delayed onset hearing loss; The Board’s failure to consider/discuss delayed onset means its statement of reasons or bases for denying appellant’s right-ear hearing loss is inadequate; Board never discusses how it determined that appellant’s in-service exposure to loud noises caused only his left-ear hearing loss; Hensley v. Brown, 5 Vet.App. 155, 164 (1993); see also Cosman v. Principi, 3 Vet.App. 503, 505 (1992);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:04 am

” The Board’s statement of reasons or bases for denying appellant’s right-ear hearing loss
claim is inadequate for two primary reasons. To begin, the Board denied service connection for right-ear hearing loss because service records do not show appellant suffering from that disability and medical records first diagnose right-ear hearing loss more than twenty years after appellant left service.16 But the Board never discusses the possibility of a delayed onset. And the 2014 VA examination, on which the Board relied, also failed to consider delayed onset.17 A claimant can establish service connection for a hearing disability that manifests several years after he leaves service if he shows that his current hearing loss is causally related to an in-service injury or disease.18 The Board’s failure to consider delayed onset means its statement of reasons or bases for denying appellant’s right-ear hearing loss is inadequate.
Another reason the Board’s statement of reasons or bases is inadequate is its failure to
explain how appellant’s in-service exposure to hazardous noises resulted in left-ear hearing loss but not right-ear hearing loss. The Board determined that appellant’s service as a materiel storage and handling specialist exposed him to loud noises.19 The Board concluded that appellant’s inservice exposure to loud noises resulted in his current left-ear hearing loss.20 Despite those conclusions, the Board determined that appellant’s in-service exposure to loud noises did not result in his current right-ear hearing loss.21 But the Board never discusses how it determined that appellant’s in-service exposure to loud noises caused only his left-ear hearing loss.22 The same factors that affected appellant’s left-ear hearing, including postservice occupational exposure to
14 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
15 Tucker v. West, 11 Vet.App. 369, 374 (1998).
16 R. at 19-20.
17 R. at 270-74; see also R. at 826-37 (February 2013 VA examination).
18 Hensley v. Brown, 5 Vet.App. 155, 164 (1993); see also Cosman v. Principi, 3 Vet.App. 503, 505 (1992).
19 See R. at 5-18.
20 See id.
21 R. at 19-20.
22 The Board discussed service treatment records that showed no right-ear hearing loss. R. at 19-20. This decision, however, explains why that reason is inadequate: the Board never discussed the possibility of delayed onset.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1565
THADDEUS S. SPEED, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Self-represented appellant Thaddeus Speed served the Nation honorably
in the United States Army. He appeals a December 14, 2018, Board decision that denied service
connection for right-ear hearing loss.1 We have jurisdiction over this timely appeal.2
The Board provided an inadequate statement of reasons or bases for denying appellant’s
claim for right-ear hearing loss. Therefore, we will set aside the Board’s decision and remand this matter for further proceedings.
I. ANALYSIS
A. Parties’ Arguments
Liberally construing his informal brief,3 we understand appellant to argue that the Board
provided an inadequate statement of reasons or bases for denying service connection for right-ear
1 The Board also restored service connection for left-ear hearing loss. Record (R.) at 4. And the Board granted service connection for tinnitus. Id. We may not disturb those favorable rulings. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 See Calma v. Brown, 9 Vet.App. 11, 15 (1996).
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hearing loss.4 Specifically, appellant argues the Board denied his claim for right-ear hearing loss “without offering any objective medical evidence to justify” finding his left-ear hearing loss service connected but not his right-ear hearing loss.5 Appellant requests that this Court grant
service connection for his right-ear hearing loss because of the Board’s error.6
The Secretary argues we should affirm the Board’s decision because it relied on an adequate
VA examination from February 2013.7 According to the Secretary, the VA examiner properly
reviewed appellant’s claims file and treatment records and conducted an in-person examination.8
Further, the Secretary argues that the VA examiner properly considered how appellant’s separation
examination showed him with normal hearing in his right ear.9 So the Secretary concludes that we
should affirm the Board’s decision.10
B. Applicable Law
Establishing service connection generally requires evidence of (1) a current disability, (2)
in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed
in-service disease or injury and the present disability.11 The Court reviews for clear error the
Board’s findings concerning service connection.12 The Court will overturn the Board’s findings
only if the record offers no plausible basis for the Board’s decision and the Court is left with a
definite and firm conviction that the Board’s decision was in error.13
For all material issues of fact and law, the Board must support its decision with an adequate
statement of reasons or bases that allows the claimant to understand the precise reasons for the
4 Appellant’s Brief (Br.) at 2. Appellant raises other arguments we need not address.
5 Id. at 2.
6 Id. at 3.
7 Secretary’s Br. at 7-11.
8 Id. at 9.
9 Id.
10 Id. at 11.
11 38 C.F.R. § 3.303(a); see Hickson v. West, 12 Vet.App. 247, 252 (1999).
12 Dyment v. West, 13 Vet.App. 141, 144 (1999) (citation omitted).
13 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
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Board’s decision and facilitates review in this Court.14 If the Board fails to provide an adequate
statement of reasons or bases for its decision, remand is appropriate.15
C. Board’s Error
The Board’s statement of reasons or bases for denying appellant’s right-ear hearing loss claim is inadequate for two primary reasons. To begin, the Board denied service connection for right-ear hearing loss because service records do not show appellant suffering from that disability and medical records first diagnose right-ear hearing loss more than twenty years after appellant left service.16 But the Board never discusses the possibility of a delayed onset. And the 2014 VA examination, on which the Board relied, also failed to consider delayed onset.17 A claimant can establish service connection for a hearing disability that manifests several years after he leaves service if he shows that his current hearing loss is causally related to an in-service injury or disease.18 The Board’s failure to consider delayed onset means its statement of reasons or bases for denying appellant’s right-ear hearing loss is inadequate.
Another reason the Board’s statement of reasons or bases is inadequate is its failure to explain how appellant’s in-service exposure to hazardous noises resulted in left-ear hearing loss but not right-ear hearing loss. The Board determined that appellant’s service as a materiel storage and handling specialist exposed him to loud noises.19 The Board concluded that appellant’s inservice exposure to loud noises resulted in his current left-ear hearing loss.20 Despite those conclusions, the Board determined that appellant’s in-service exposure to loud noises did not result in his current right-ear hearing loss.21 But the Board never discusses how it determined that appellant’s in-service exposure to loud noises caused only his left-ear hearing loss.22 The same
factors that affected appellant’s left-ear hearing, including postservice occupational exposure to
14 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
15 Tucker v. West, 11 Vet.App. 369, 374 (1998).
16 R. at 19-20.
17 R. at 270-74; see also R. at 826-37 (February 2013 VA examination).
18 Hensley v. Brown, 5 Vet.App. 155, 164 (1993); see also Cosman v. Principi, 3 Vet.App. 503, 505 (1992).
19 See R. at 5-18.
20 See id.
21 R. at 19-20.
22 The Board discussed service treatment records that showed no right-ear hearing loss. R. at 19-20. This decision,
however, explains why that reason is inadequate: the Board never discussed the possibility of delayed onset.

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loud noises, seemingly also affected appellant’s right-ear hearing.23 The Board, however, failed to
explain how it arrived at different conclusions for appellant’s left ear and right ear. That failure
means its statement of reasons or bases for denying service connection for right-ear hearing loss
is inadequate.24 So remand is required.
Because we are remanding these matters to the Board, we need not address appellant’s
remaining arguments. 25 On remand, appellant may submit additional evidence and argument
within ninety days of receiving VA’s post-remand notice.26 The Board must consider additional
evidence and arguments appellant submits, and the Board must proceed expeditiously.27
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the December 14, 2018, Board decision and REMANDS this matter for further
proceedings consistent with this decision.
DATED: March 18, 2020
Copies to:
Thaddeus S. Speed
VA General Counsel (027)
23 R. at 5-20.
24 Cf. Kightly v. Brown, 6 Vet.App. 200, 206 (1994) (remanding Board decision that failed to cite evidence showing
that veteran’s in-service incident—when he fell and landed with both shoulders on the pavement—resulted in a leftshoulder
disability but not a right-shoulder disability).
25 See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999).
26 Id.; see also Clark v. O’Rourke, 30 Vet.App. 92 (2018).
27 Kay v. Principi, 16 Vet.App. 529, 533-34 (2002); see 38 U.S.C. §§ 5109B, 7112.

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