Citation Nr: 0814643 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-17 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from July 1964 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection. In August 2007, the veteran and his wife testified at a personal hearing over which the undersigned Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. In a September 2005 statement, the veteran asked VA to obtain his medical treatment records for hearing loss and tinnitus at the Malcom Randall VA Medical Center in Gainesville, Florida. His wife testified that a VA examiner had tested the veteran's hearing in the past and recommended against hearing aids at that time. Although VA has a duty to assist a claimant in obtaining evidence to substantiate his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007)), nothing in the claims folder indicates that the RO requested the VA treatment records. VA medical treatment records are deemed to be within the control of VA and should have been included in the record, as they may be determinative of the claim. Therefore, a remand is necessary for the purpose of obtaining such records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, in his September 2006 notice of disagreement, the veteran requested that VA obtain his personnel file ("201 file") to substantiate the degree to which he had been exposed to noise during service. Since the personnel file is within the custody of a federal department or agency, the RO/AMC should make arrangements to obtain those records. 38 C.F.R. § 3.159(c)(2). In addition, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). VA conducted an audio compensation and pension (C&P) examination in October 2005. In his report, the audiologist noted that the overall reliability of the audiometry results was fair to poor. He recommended reevaluation with a different tester. Given the poor reliability of the test results, the veteran should be scheduled for another examination, with a different examiner, for the purpose of obtaining reliable test results. That C&P examiner should also provide an opinion as to whether the veteran's current hearing loss and tinnitus disabilities are related to service and support that opinion with complete rationale. Notwithstanding his own determination that the reliability of the audiometry results was fair to poor, the October 2005 C&P examiner provided an opinion that neither the veteran's tinnitus nor his hearing loss was related to military service because those conditions did not exist at the time the veteran was separated from service. But the fact that a veteran's hearing is normal at the time of separation of service is not-by itself- conclusive as to whether a later hearing loss disability is related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993) (if hearing loss doesn't meet disability standards at discharge or during presumptive period, but evidence sufficiently demonstrates 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). Thus, after obtaining reliable test results, the examiner should provide a complete rationale for his or her opinion, and to the extent it differs from the opinion of the October 2005 C&P examiner, the examiner should discuss how and why his or her opinion is different. The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain records of medical treatment for the veteran's ears, hearing loss, and tinnitus from the Malcom Randall VA Medical Center in Gainesville, Florida. Associate any evidence obtained with the claims folder. 2. Make arrangements to obtain the veteran's personnel file and associate any evidence obtained with the claims folder. 3. After the additional evidence is associated with the claims folder, make arrangements for the veteran to have an appropriate examination-by a different examiner than the one who conducted the October 2005 C&P examination (if possible)-to determine the etiology of his bilateral hearing loss and tinnitus. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies should be performed. The examination report must provide complete rationale for all opinions and must address the following matters: (a) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the veteran's current bilateral hearing loss is related to his military service, including noise exposure? (b) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the veteran's current tinnitus is related to his military service, including noise exposure? (c) To the extent either of the above opinions differs from any other medical opinions (including the October 2005 C&P examiner) on these questions, please indicate how and why your opinion is different. 4. Finally, readjudicate the issue on appeal. If the claim remains denied, provide the veteran and his representative with a supplemental statement of the case. Allow an appropriate period for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).