Citation Nr: 1117723 Decision Date: 05/09/11 Archive Date: 05/17/11 DOCKET NO. 10-16 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and his Wife ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1946 to April 1948 and from October 1950 to May 1952. His decorations include the Purple Heart and the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the above claim. In February 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. The issues of whether new and material evidence has been submitted with which to reopen a claim of entitlement to service connection for a low back disability, to include a muscle condition of the low spine (Muscle Group XX) and sciatica; entitlement to service connection for a muscle condition of the pelvic girdle (Muscle Groups XVI, XVII, XVIII), to include hip arthralgia; entitlement to service connection for a muscle condition of the abdominal wall (Muscle Group XIX); entitlement to service connection for a muscle condition of the thigh (Muscle Groups XIII, XIV, XV); and entitlement to special monthly compensation for loss of use of the buttocks, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Veteran's June 2010 statement. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional 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. For the reasons set forth below, the Board finds that additional development is required in this case. Specifically, on remand, attempts should be made to obtain a complete copy of the Veteran's private and VA treatment records, and the Veteran should be afforded another VA examination assessing the etiology of his bilateral hearing loss. The Veteran contends that his bilateral hearing loss was caused by in-service noise exposure, including noise from artillery, mortars, and explosions while in combat. See February 2011 Board hearing transcript; Veteran's June 2008 claim; his July 2008 statement; his September 2009 notice of disagreement; and his April 2010 substantive appeal. In this regard, the Veteran has reported that he lost his hearing the day that he suffered right arm injuries in combat in Korea. Specifically, he has reported that, the day that he suffered a gunshot/missile injury to his elbow and forearm, he also had several near gunshot misses, including one that went through his shirt and one that hit his helmet, leaving a hole on the right side of his helmet and a knob on the left side, but which did not penetrate his skull. See Veteran's October 2008 statement and August 2008 VA examination report. In this regard, the Veteran has indicated that, directly after the bullet hit his helmet, he saw stars, had blurred vision, and had a headache. See Veteran's October 2008 statement. Further, the Veteran has reported that, during his subsequent in-service hospital treatment for his gunshot/missile wounds, he could not hear out of his right ear, experienced awful headaches, and had an aching pain in the right side of his jaw. See Veteran's October 2008 statement. Moreover, the Veteran has reported that he did not have any significant post-service exposure to noise working as photograph engraver. See February 2011 Board hearing transcript. Additionally, the Veteran's wife has reported that, when she first met the Veteran in 1962 (i.e., ten years after separation from service), he already had hearing loss, which has continued since. See February 2011 Board hearing transcript. In this regard, she indicated that, when she and the Veteran were first married and raising children together, he often did not hear her speaking to him and was usually oblivious to what was going on around him because he could not hear anything. See February 2011 Board hearing transcript. Finally, the Board notes that service connection is already in effect for the Veteran's tinnitus. At the outset, the Board highlights that, pursuant to 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), any Veteran who engaged in combat during active service may submit satisfactory lay or other evidence as sufficient proof of service connection if the evidence is consistent with the facts circumstances, conditions, and hardships of such service, even though there is no official record of such in-service incurrence or aggravation. This presumption, however, does not warrant an automatic grant of service connection, but rather, eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran's service personnel records indicate that he received the Purple Heart and the Combat Infantryman Badge. His service treatment records reflect that, in January 1951, while serving in Korea, he sustained a gunshot/missile wound of the right elbow and right ulnar forearm with ulnar nerve damage as a result of enemy action during combat. As such, the record clearly indicates that the Veteran was exposed to combat, and accordingly, his assertions regarding events during combat are to be presumed if consistent with the time, place, and circumstances of such service, thereby relaxing the adjudicative evidentiary requirements for determining what happened in service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see also Caluza v. Brown, 7 Vet. App. 498 (1995); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); see also Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Here, because the Veteran's reports of in-service exposure to artillery, mortar, and explosion noise during the Korean War is consistent with the circumstances, conditions, and hardships of his service, VA must accept that he did have noise exposure in service. Additionally, the Board notes that a review of the Veteran's service medical records indicates that the Veteran had 15/15 hearing bilaterally on whispered voice testing conducted at his June 1946 induction examination, his April 1948 separation examination, and his September 1950 induction examination. Further, at an examination conducted in January 1952 (i.e., three months prior to separation from service), the Veteran was noted to have no significant abnormalities of the ears, nose, or throat. In this regard, the Board notes that a review of the records fails to show any evidence of treatment for, or problems with, his hearing during service. Significantly, however, as noted above, the Veteran has reported that, while he was in the hospital for his combat injuries, he was unable to hear out of his right ear. See February 2011 Board hearing transcript. Post-service, the Veteran has reported that, in 2002, he underwent audiological testing by a private physician at Bella Vista Hearing, which was paid for by VA. See February 2011 Board hearing. Significantly, however, to date copies of these treatment records have not been associated with the claims file. Thereafter, during VA treatment in December 2005, the Veteran was diagnosed with sensorineural hearing loss, and he has continued to receive VA treatment for his hearing loss, including being afforded VA hearing aids, since that time. In August 2008, the Veteran was afforded a VA audiological examination. At the outset, the examiner reported that the claims file was not available for review at that time; however, she did note the Veteran's reports regarding his history of noise exposure. Specifically, the examiner noted the Veteran's report that, during his first period of service, he was in a weapons training company in Japan where his duties included coding and decoding messages, and that during his second period of service, he served as a photograph interpreter. In this regard, the Veteran reported that, during service, he was exposed to noise from weapons training, machine guns, mortars, explosions, and other combat noise. The Veteran also reported that, while serving in Korea, prior to being wounded himself, he attempted to save several men from the top of a hill, and that while attempting to assist another soldier, a bullet went through his sleeve, causing him to fall down on some rocks. In this regard, the Veteran stated that, while on the ground, yet another bullet hit his helmet, where it remained lodged. In this regard, the Veteran reported that, shortly thereafter, he was hit by shrapnel, and spent the following 15 months in the hospital recovering from his injuries. Further, the Veteran reported that, following separation from service, he worked in printing for 44 years, and that his post-service recreational noise exposure was primarily limited to lawn equipment. Audiological testing conducted at that time revealed hearing loss in accordance with VA standards. See 38 C.F.R. § 3.385. Based on these test results, the examiner diagnosed the Veteran with normal to severe sensorineural hearing loss bilaterally. The examiner then went on to provide the report that she could not offer an opinon as to the etiology of the Veteran's bilateral hearing loss and tinnitus until she had received and reviewed the Veteran's claims file. Thereafter, in October 2008, after receiving the Veteran's claims file, the August 2008 VA examiner provided an addendum medical opinion. At the outset of this opinion, the examiner indicated that she had reviewed the Veteran's claims file. She then went on to report that she could not offer an opinion as to the etiology of the Veteran's bilateral hearing loss and tinnitus without resort to mere speculation. In this regard, the examiner stated that there was no evidence in service regarding the Veteran's complaints of hearing loss or tinnitus. Further, the examiner noted that the Veteran had denied having ear, nose, and throat symptomatology at the time of his April 1948 separation examination and his September 1950 induction examination, and that audiological testing (i.e., whispered voice testing) conducted at those times was normal. Moreover, the examiner noted that the earliest documentation of hearing loss and tinnitus was dated in 2002. Finally, the examiner stated that, while it was possible that the Veteran's bilateral hearing loss and tinnitus occurred during the Veteran's second period of service, an opinion as to whether these conditions were related to military service was not possible at that time without resort to mere speculation. The Board acknowledges the August 2008 VA examiner's October 2008 opinion that it was possible that the Veteran's bilateral hearing loss occurred during the Veteran's second period of service. Significantly, however, the Board points out that evidence of a mere possibility is too equivocal to substantiate the Veteran's claim. The Board also acknowledges the August 2008 VA examiner's October 2008 statement that the etiology of the Veteran's bilateral hearing loss could not be determined without resorting to speculation. Significantly, however, insofar as this opinion fails to provide a clear statement as to the etiology of the Veteran's hearing loss, the Board finds this opinion to be of little probative value. Moreover, although the examiner discussed the Veteran's reports regarding his military noise exposure, insofar as she failed to acknowledge or discuss his reports that he could not hear out of his right ear during service while he was hospitalized for his gunshot/missile wounds, or his wife's reports that he was unable to hear when she met him in 1962 (i.e., within ten years of separation from service), the Board finds that the examiner's determination appears to be based on an incomplete and inaccurate factual history. See Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the Board should ensure that any such finding is well supported by the facts and data and reflects that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of an in-service injury, but instead relied on the service treatment records to provide a negative opinion). Based on the foregoing, the Board finds that another VA examination and medical opinion assessing the etiology of the Veteran's bilateral hearing loss is necessary to make a determination in this case. See 38 C.F.R. § 4.2. Additionally, the Board notes that a review of the record reveals that some of the Veteran's relevant VA treatment records have not yet been associated with the claims file. Specifically, the record reflects that, although the Veteran has received fairly consistent VA treatment for his bilateral hearing loss and hearing aids, records dated from December 2005 to June 2006, and from April 2008 to present, have not been associated with the claims file. Moreover, the Board notes that although the Veteran reported in July 2008 that he had been receiving treatment from the VA Medical Center in North Little Rock, Arkansas, to date, the only VA treatment records that have been associated with the claims file are from the VA Medical Center in Fayetteville, North Carolina. Accordingly, on remand the RO/AMC should make arrangements to obtain a complete copy of the Veteran's VA treatment records. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2). Finally, the Board notes that a review of the record reveals that some of the Veteran's relevant private treatment records have not yet been associated with the claims file. Specifically, as noted above, at his February 2011 Board hearing, the Veteran reported that he underwent audiological testing by a private physician at Bella Vista Hearing in 2002, which was paid for by VA. Significantly, however, to date, no private treatment records regarding the Veteran's hearing loss have been associated with the claims file. In this regard, the Board notes that VA has a duty to make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include private medical records. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). Accordingly, efforts should be made on remand to obtain a complete copy of all of the Veteran's outstanding private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment with respect to all private health care providers who have treated his bilateral hearing loss, to specifically include treatment records from a private physician at Bella Vista Hearing in 2002. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain any medical records identified by the Veteran. If these records are not available, request that the doctor(s) provide a negative reply. 2. Obtain a complete copy of the Veteran's treatment records for his bilateral hearing loss from the VA Medical Centers in 1) Fayetteville, North Carolina, dated from December 2005 to June 2006, and from April 2008, forward; and 2) North Little Rock, Arkansas. 3. Once the foregoing development has been completed, schedule the Veteran for a VA audiological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss had its onset during active service or is related to any in-service disease, event, or injury, including in-service noise exposure to combat noise (artillery, gunfire, mortars, missiles, explosions, etc.) in Korea. In providing this opinion, the examiner should acknowledge the lay evidence of record regarding such exposure, as well as 1) the Veteran's reports that, following his January 1951 combat injuries, he could not hear out of his right ear, and 2) the Veteran's wife's reports that he could not hear when she met him in 1962, and that he had been unable to hear since. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Finally, readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ MATTHEW W. BLACKWELDER Acting 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).