Citation Nr: 0815119 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-18 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from June 1945 to November 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that, in part, denied the appellant's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Attempts to locate the appellant's service medical records have been unsuccessful. Apparently, his records were destroyed in the fire at the National Personnel Records Center (NPRC) in 1973. The Board is mindful that in such a case there is a heightened duty to assist the veteran in developing the evidence that might support his claim, see Cuevas v. Principi, 3 Vet. App. 542 (1992), including the obligation to search for alternate medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). In April 2008, a Deputy Vice Chairman granted a motion to advance the appeal on the Board's docket on the basis of the appellant's advanced age. See 38 U.S.C.A. § 7101; 38 C.F.R. § 20.900. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. In cases where the veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the veteran in developing facts pertinent to his claims in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). In this case, for all intents and purposes, the appellant's service medical records (SMRs) have been irretrievably lost. In August 2006, upon request from the RO, the National Personnel Record Center (NPRC) responded that the appellant's SMRs were fire-related and could not be located. The NPRC also stated that there were no Surgeon General's records for the appellant. However, the RO apparently did not make a formal finding of the unavailability of the veteran's service records. It is unclear whether the RO has attempted to obtain other alternative records. Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The VA Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in cases where the service medical records are missing. A non-exhaustive list of documents that may be substituted for service medical records in this case includes: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians where a veteran may have sought treatment, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA Adjudication Procedure Manual, Manual M21- 1, Part III, paragraph 4.25(c) and 4.29 (Oct. 6, 1993). The appellant should be afforded the opportunity to provide such documentation. Review of the evidence of record reveals that the appellant was seen for a VA audiology consultation in August 2002. He reported difficulty hearing routine conversations and said that he thought his right ear was worse than the left. He also reported the presence of periodic tinnitus and significant noise exposures. Testing demonstrated speech discrimination scores of 64 percent on the right and 80 percent on the left. The determination of whether a veteran has a ratable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen 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." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Further, the United States Court of Appeals for Veterans Claims (Court) opined that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Hensley at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The evidence of record indicates that the appellant may have been exposed to acoustic trauma in service by virtue of his duties as the driver of two-and- a-half ton vehicles (as reflected on his WD AGO Form 100). However, no clinical opinion as to whether either the current hearing loss or the current tinnitus is etiologically linked to the veteran's in-service noise exposure has been rendered. The appellant has not been afforded a VA medical examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the appellant has documented bilateral hearing loss, and there is medical documentation of tinnitus. The appellant had some noise exposure in service. Therefore, the Board finds that the duty to assist in this case requires that a VA medical opinion should be obtained on remand. These considerations require a search for relevant medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), the implementing regulations found at 38 C.F.R. § 3.159 (2007) and any other applicable legal precedent is completed. In particular, the AMC/RO should notify the veteran of the information and evidence yet needed to substantiate his service connection claims and of what part of such evidence he should obtain, and what part the AMC/RO will yet attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant should also be told to provide any evidence in his possession pertinent to either one of his claims. 38 C.F.R. § 3.159 (2006). 2. The AMC/RO should take appropriate steps to secure all alternative service medical records for the veteran from any appropriate source. Per the VA Adjudication Procedure Manual, the non- exhaustive list of documents that may be substituted for service medical records in this case includes, but is not limited to, statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians where a veteran may have sought treatment, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. Any and all records obtained should be associated with the claims file. If there are no records, the RO should so specifically find and the documentation used in making that determination should be set forth in the claims file. 3. The AMC/RO should contact the appellant to obtain the names and addresses of all medical care providers (including any employee health facilities) who have tested his hearing or treated him for any hearing-related disorder since service. After securing the necessary release(s), the AMC/RO should obtain those records that have not been previously secured. To the extent there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results, and should be given opportunity to submit the sought-after records. 4. After completing any additional notification and/or development action deemed warranted by the record, the AMC/RO should arrange for a VA examination to review the claims file, including all pertinent medical records, to examine the veteran and to provide a written opinion as to the etiology and onset of the veteran's current hearing loss and tinnitus. The examiner is requested to provide an opinion as to the medical probability that any documented hearing-related condition is related to acoustic trauma the veteran may have experienced in service as opposed to that which he experienced in relation with his post-service occupational or recreational history or some other cause or causes. The opinions should be provided based on review of the claims file if the veteran fails to report for examination. Specifically, the examiner is requested to state whether the veteran's defective hearing is related to any incident of military service, and state the reasons for such an opinion. The examiner is also requested to state whether the veteran's tinnitus is related to any incident of military service, to his hearing loss or to some other cause(s). The examiner must state the reasons for each opinion rendered. The opinion should include a discussion of the effect and significance, if any, of post-service noise exposure. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the examiners. 5. The AMC/RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the report does not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the providing examiner for corrective action. 6. After all appropriate development has been accomplished, the AMC/RO should again review the record, including any newly acquired evidence, and readjudicate the issues of service connection for tinnitus and bilateral hearing loss. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 7. If any benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed 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). The appellant is hereby notified that it is the veteran's responsibility to report for any scheduled 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. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). _________________________________________________ C. TRUEBA 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).