Citation Nr: 1005083 Decision Date: 02/03/10 Archive Date: 02/18/10 DOCKET NO. 05-36 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for small fiber neuropathy, polyneuropathy, and carpal tunnel syndrome. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel REMAND The Veteran served on active duty from March 1968 to June 1969; he also served with a reserve component, which service included a period of active duty for training from December 1963 to April 1964. By way of an August 2009 order, the United States Court of Appeals for Veterans Claims (Court) vacated a February 2008 decision by the Board that had denied the Veteran's claim for service connection for left ear hearing loss, and claim to reopen service connection for small fiber neuropathy, polyneuropathy, and carpal tunnel syndrome. The Court's order followed a joint motion for remand. Regarding the issue of service connection for left ear hearing loss, the parties to the joint motion determined that an October 2005 VA examiner's opinion was inadequate because the examiner did not provide a proper nexus opinion; nor did the examiner explain the rationale for his opinion. Specifically, in an October 2005 addendum to an earlier examination, the examiner opined that it was not likely that the Veteran had a ratable hearing loss in the left ear from service. The August 2009 joint motion noted that the examiner did not provide a nexus opinion or explain how he arrived at his conclusion. In this regard, the Board notes that in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that a medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Because the October 2005 VA examiner failed to provide an adequate nexus opinion, or explain his opinion, the parties determined that further evidentiary development is required. On remand, a VA medical nexus opinion should be obtained, which contains a thorough rationale and takes into consideration the Veteran's assertion that acoustic trauma from service caused his left ear hearing loss. Specifically, the Veteran should be afforded a VA audiological examination, which includes a nexus opinion on the question of whether his left ear hearing loss is the result of in-service noise exposure. The examiner should review the Veteran's statements describing in-service acoustic trauma, and after taking into account all the evidence of record, including the service treatment records (STRs) and VA audiological examinations, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed left ear hearing loss is attributable to his military service. The basis for the opinion should be set forth in detail. Regarding the claim to reopen entitlement to service connection for small fiber neuropathy, polyneuropathy, and carpal tunnel syndrome, the Court remanded the Veteran's claim to reopen because of VA's failure to provide proper notice in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2009). Specifically, the Court found that the Veteran was not adequately notified of the evidence and information necessary to reopen a disallowed claim-(i.e., what constitutes new and material evidence), nor was he notified of what was required to substantiate the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court explained that the VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Thus, the Board finds that a remand is required to satisfy the notification provisions of the VCAA in accordance with Kent, supra and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Board observes that in a December 2004 statement from the Veteran, the Veteran stated that around 2000, he started to receive social security disability benefits because of his small fiber neuropathy/polyneuropathy. There are no records from the Social Security Administration (SSA) contained in the claims folder. On remand, VA must make efforts to obtain these records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). This is so because there is a chance that the records could contain information relevant to the current appeal, specifically, medical evidence showing that the Veteran's small fiber neuropathy/polyneuropathy is etiologically related to service. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The AOJ must review the claims file and ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2009) are fully complied with and satisfied in accordance with 38 C.F.R. § 3.159 (2009). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the originating agency must apprise the Veteran of the requirement that, in accordance with 38 C.F.R. § 3.156, new and material evidence must be received in order to reopen his previously denied claim. The notification letter should explain what constitutes new and material evidence, and the Veteran should be told of the bases for the previous denial and consequently what is now required to reopen. See Kent, supra. He should also be instructed as to what is required to substantiate the underlying service connection claim. Id. Specifically, the AOJ should identify the type of evidence (e.g., an opinion from a medical doctor relating any small fiber neuropathy/polyneuropathy to the Veteran's period of service) necessary to satisfy the element of the underlying claim which was found insufficient in the previous denial, in accordance with Kent, supra. The notification letter should also inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess, supra. 2. The RO should obtain from the SSA a copy of any decision awarding the Veteran disability benefits, together with all medical records underlying that determination. In requesting these records, the AOJ should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims folder. 3. The Veteran should be afforded a VA audiological examination, conducted by an audiologist with appropriate expertise to provide a nexus opinion regarding the medical probability that the Veteran's left ear hearing loss is attributable to his period of active military service. The audiologist should include an opinion as to whether it is at least as likely as not that the Veteran's current left ear hearing loss is attributable to military service, taking into consideration the Veteran's statements describing in- service noise exposure, in addition to the STRs and VA examinations. The examiner should explain his/her opinion in detail, pointing to evidence in the file and scientific principles that support the opinion. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. (Should the Veteran fail to report for the examination, the medical nexus opinion should be sought based on a review of the record.) The AOJ should make sure that the examination report complies with this remand and the question presented in the examination request, especially with respect to detailing any connection to military service. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal in light of all information or evidence received. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2009).