Citation Nr: 1205282 Decision Date: 02/10/12 Archive Date: 02/23/12 DOCKET NO. 06-37 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to December 1954. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus. The Veteran disagreed and perfected an appeal. In a May 2009 decision, the Board denied the Veteran's claims. The Veteran appealed and in a September 2010 Order, the Court of Appeals for Veteran's Claims (Court) remanded the claims for action consistent with the Joint Motion for Remand. The Court determined that the evidence was inadequate since the VA opinion relied upon in the denial since adequate rationale was not provided. The Board remanded the Veteran's claim in January 2011 and again in September 2011. The case has been returned to the Board and is ready for further review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 appellant if further action is required. 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). 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. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Regarding the issues on appeal, the Board previously remanded the claim to obtain additional information to ensure that the claims file contained all available records. The Board mandated that the Veteran be evaluated under clearly specified conditions and the Board directed that specific questions be answered by the examiner regarding the disorders on appeal. Review of the file reveals that the mandates presented by the Board were not adequately followed or addressed. The Board's January 2011 remand required that the Veteran be examined by a VA audiologist who had not previously examined him and required the VA examiner to review the record "explicitly including the Veteran's statements regarding exposure to excessive noise during service and the February 2006 statement of the Veteran's spouse." The February 2011 VA examiner stated that a review of the records showed that the "only hearing related information in the claim file, besides the 09-22-2006 audiology report, was testimony from the Veteran's wife." The examiner concluded that the record showed that the Veteran "reported minimal exposure to weapons fire, during basic training, at his 9-20-2002 evaluation." In the Board's September 2011 remand it was pointed out that in a March 2006 statement, the Veteran explained that he had "8 weeks of infantry training with the M-1 rifle, then 8 weeks of artillery with 105 Howzer (sic) [howitzer] and carbine rifle." He was sent to Germany and spent time in the motor pool when his unit was "at base," but when on maneuvers he was "in the wire section and laid "wire to each battery and sometimes they were in a firing mission and sometimes they were firing over us." He also stated that while in Germany, he fired "many different weapons [such as] M-1, Carbine, .45 caliber grease gun, .45 cal. Pistol," to name a few. Moreover, a VA psychiatrist reported in a November 2010 report that the Veteran stated he had experienced a traumatic event during service when an artillery round fell short and exploded within 200 meters of the Veteran. The Board found that the Veteran's statements were plausible and credible. The exposure to firearms over the period of his service and the types of firearms and artillery he states that he was exposed to are consistent with the Veteran's DD 214 and the types of training provided during the time period the Veteran was on active duty. The Board found that the VA examiner's characterization of the Veteran's exposure to excessive noise as minimal not consistent with the evidence of record and the examination thus did not meet the standard set by the Court in Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board found that the Veteran had more than "minimal" exposure to excessive noise and determined that a new opinion was necessary from a VA examiner who was to assume the Veteran's statements as credible. The Board also found that the Veteran's wife's statement recounted by the examiner also credible. Because the statements are crucial evidence to an opinion regarding etiology of the Veteran's hearing loss, the Board remanded the claim for a review of the statements and an opinion which addresses them in the context of a determination of whether it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus were incurred or aggravated during active duty service. Accordingly, the VA examiner was to provide an opinion whether it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus were incurred in or aggravated during his active duty service. The examiner was to assume for purposes of the requested opinion that the Veteran's March 2006 statement, the Veteran's wife's February 2006 statement and the Veteran's November 2010 statement reported by a VA psychologist are credible and plausible statements. The examiner's written narrative opinion was to address the Veteran's statements and provide a complete medical rationale that supported the opinion rendered. In November 2011, the same VA examiner who previously examined the Veteran offered an addendum opinion. She stated that her opinion was consistent with her previous decision. She stated that hearing loss and tinnitus were less likely as not caused by or a result of service. She indicated that the Veteran's hearing status were not known at service entrance or service separation due to fire-related records. She said that in March 2006, the Veteran reported 8 weeks of infantry training and at his September 2002 evaluation, he reported minimal exposure to weapons fire during basic training. She also said that the Veteran also initially reported the onset of tinnitus around 1986, which is 32 years after discharge. No further discussion was offered. A remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner did not address the Veteran's wife's February 2006 statement or the Veteran's November 2010 statement reported by a VA psychologist. Additionally the Veteran's representative has requested that the claims be remanded as he believes the opinions offered to be inadequate and lacking in complete rationale. He stated in his January 2012 argument that the examiner did not address the Veteran's statements during his examination that he drove trucks and worked on phone lines and that this is also significant noise that can cause hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here complete rationale was not provided in the addendum opinion. Thus a remand is required. The appellant is hereby notified that it is his responsibility to report for any examination that may be scheduled, 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. See 38 C.F.R. §§ 3.158 and 3.655 (2011). 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) (2011). Expedited handling is requested.) 1. Provide the Veteran's VA claims folder to another VA audiologist who has not previously offered an opinion in this matter. The examiner must review the Veteran's VA claims folder. The examiner shall provide an addendum opinion whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss and tinnitus were incurred in or aggravated during his active duty service. The examiner shall assume for purposes of the requested opinion that the Veteran's March 2006 statement, the Veteran's wife's February 2006 statement and the Veteran's November 2010 statement reported by a VA psychologist are credible and plausible statements. Prior VA examination reports and opinions should be addressed. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, such an examination shall be accomplished. Prior to rendering the opinion, the examiner is reminded that VA law and regulation does not preclude service connection for post-service hearing loss where the record does not show defective hearing during or at the time of separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss and tinnitus are causally or etiologically related to his military service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. The examiner is also directed to the Veteran's competent and credible lay testimony regarding noise exposure to howitzers, machine guns and from trucks as well as from being a lineman. However, any noise exposure following service should also be considered. The examiner's written narrative opinion shall address the Veteran's statements and shall provide a complete medical rationale that supports the opinion rendered. The examiner's report shall be associated with the Veteran's VA claims folder. 2. The RO should review the claims folder 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 report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011); See also Stegall v. West, 11 Vet. App. 268 (1998). 3. Following completion of the foregoing, VBA shall readjudicate the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. If the benefit sought on appeal remains denied, VBA should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order. 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. 2011). _________________________________________________ F. JUDGE FLOWERS 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) (2011).