Citation Nr: 1102662 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 08-21 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1976 to August 1992 and from October 1995 to March 1996. He had military reserve service until December 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board in June 2010 found new and material evidence had been received and remanded the issue on appeal for additional development. The Veteran subsequently submitted correspondence and additional evidence pertinent to his claim without waiver of agency of original jurisdiction (AOJ) consideration. The issues of reopening a claim for entitlement to service connection for tinnitus and entitlement to an increased or total disability rating for an acquired psychiatric disorder have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. The Veteran was provided VCAA notice by correspondence dated in June 2007. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. VA regulations provide that a medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA law provides that service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477- 78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2010). The Court has held that regulations concerning presumptive service connection, the presumption of soundness and the presumption of aggravation, were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). VA regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010). VA will not concede, however, that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). In this case, the record shows the Veteran reported a history of noise exposure during active and military reserve service working around aircraft. Service treatment records include audiometry findings indicative of various levels of hearing acuity. The Veteran reported he experienced a sudden onset left ear hearing loss in March 2000. Private treatment records dated in March 2000 show the Veteran was treated for a sudden hearing loss in the left ear and a possible tumor. Symptoms included headaches, vertigo, and lightheadedness. A diagnosis of vestibular neuritis was provided. Magnetic resonance imaging (MRI) scan findings in May 2000 were normal. VA examination in June 2004 revealed a profound sensorineural hearing loss in the left ear. The examiner noted a history of treatment for the left ear problems in March 2000 with left ear hearing loss and tinnitus from that date. It was the examiner's opinion that the Veteran's left ear hearing loss was unrelated to acoustic trauma in service because it had been sudden in nature and was inconsistent with noise exposure. VA examination in July 2010 included a diagnosis of a profound left ear sensorineural hearing loss with a possible conductive component. The examiner found the Veteran's hearing loss and tinnitus were not related to military service, but erroneously stated that a sudden hearing loss in March 2000 was eight years after his discharge from active duty. His last period of active duty service, in fact, ended in March 1996 although as noted, he did have reserve service through 2002. In correspondence dated in August 2010 the Veteran reported that he had discovered medical information addressing the effect of prescription drugs on hearing and provided internet source information concerning ototoxic drugs. He stated that his own independent research revealed that anti-depressant and non- steroidal anti-inflammatory drugs were included as ototoxic and that he had been provided these medications during active service. VA records show that service connection is established for dysthymic disorder, major depression, and generalized anxiety disorder effective from January 20, 2004. Therefore, the Board finds that additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be contacted and requested to provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and/or non-VA, who have provided treatment pertinent to the issue on appeal. He should be specifically requested to identify any treatment for which the records may tend to show medications were provided during active service, during periods of ACDUTRA or INACDUTRA service, or for a service- connected disability. After the Veteran has signed any appropriate releases all identified pertinent records should be obtained and associated with the claims folder. Attempts to procure records should be documented in the file. If records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran's claim file should be reviewed by a VA ear, nose, and throat specialist or other appropriate medical specialist for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has a left ear hearing loss that was either incurred or aggravated as a result of service, to include as a result of any medications provided during active service, during periods of ACDUTRA or INACDUTRA service, or for a service- connected disability. If it is found that a left ear hearing loss was aggravated by a service-connected disease an opinion should be provided as to the baseline level of severity of the disorder before the onset of aggravation. All indicated examinations, tests, and studies necessary for an adequate opinion should be conducted. Opinions should be provided based on a review of the medical evidence of record and sound medical principles. All findings, along with the complete rationale for the opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2010). _________________________________________________ S. L. Kennedy 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) (2010).