Citation Nr: 1237184	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  10-46 746	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for hepatitis.


REPRESENTATION

Appellant represented by:	Charles D. Romo, Attorney


WITNESSES AT HEARING ON APPEAL

The appellant and his wife

ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The Veteran served on active duty from October 1954 to October 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In October 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

A review of Virtual VA reveals no evidence relevant to the claims on appeal.

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 issues of entitlement to service connection for bilateral hearing loss and for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDING OF FACT

In October 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for the claim of entitlement to service connection for hepatitis.



CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran as to the claim of entitlement to service connection for hepatitis have been met.  38 U.S.C.A.              § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the Veteran indicated in October 2011 that he wanted to withdraw his appeal for the issue of entitlement to service connection for hepatitis.  Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this matter on appeal, and it must be dismissed.


ORDER

The appeal as to the claim of entitlement to service connection for hepatitis is dismissed.


REMAND

The Board finds that further development is warranted regarding the claims remaining on appeal.

The Veteran asserts that he has bilateral hearing loss and tinnitus due to noise exposure during his military service.  Specifically, he asserts that he was exposed to consistent mortar explosions while serving as a field artillery soldier in the Army.  The Veteran's DD Form 214 does confirm that he served in field artillery.  Other evidence of record also indicates that the Veteran had significant post-service noise exposure, to include noise from working in construction and in an iron factory.

The Veteran's service treatment records include an October 1957 separation examination report documenting that the Veteran's hearing was within normal limits bilaterally based on whispered voice testing.

The Veteran was provided a VA examination in June 2010 at which time he was diagnosed with bilateral hearing loss and tinnitus.  The examiner found that the tinnitus was as likely as not associated with the Veteran's hearing loss.  Regarding the etiology of the Veteran's bilateral hearing loss, the examiner stated that she could not resolve the question of etiology without resort to speculation because the only test at separation was a Whisper Voice Test.  She also noted that the Veteran had significant civilian noise exposure.

Regarding an in-service injury, the Board notes that the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  Given the circumstances of the Veteran's service, the Board finds that he likely had some, and possibly significant, noise exposure in service as a result of serving as a field artillery soldier for several years.  On the matter of current disability, the Veteran clearly demonstrated on June 2010 VA examination that he has a diagnosis of bilateral hearing loss, for VA disability purposes.  See 38 C.F.R. § 3.385 (2011).

The only remaining issue to resolve is whether the Veteran's bilateral hearing loss and tinnitus are related to his in-service noise exposure.  The June 2010 VA examiner did not provide an opinion, as she could not do so without resort to speculation.  The Court has explained that opinions which contain the "mere speculation" language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility.  See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also Jones v. Shinseki, 23 Vet. App. 382 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). 

Furthermore, the examiner did not consider the Veteran's statements that his tinnitus and decreased hearing began at or soon after separation.  Thus, the Board finds that the June 2010 VA examiner's opinion is inadequate, and an additional opinion is necessary.

While on remand, ongoing medical records should also be obtained.  38 U.S.C.A.   § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

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.  The RO should obtain updated treatment records from the VA Medical Center in Columbia, South Carolina.  Any records obtained must be associated with the appellant's claims folder. 

If the RO cannot locate any identified record, the RO must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must be given an opportunity to respond.

2.  Thereafter, the RO should schedule the Veteran for a VA examination to determine the nature and etiology of any current hearing loss and tinnitus.  The entire claims file, to include access to any relevant records in Virtual VA, must be made available to and be reviewed by the examiner in conjunction with the examination.  

All relevant testing should be conducted.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements, as well as a copy of this remand. 

It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. 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 Veteran has contended that he had noise exposure during his military service.  It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. 

The examiner should also note that VA has observed that whispered voice tests can be subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure.

The examiner should then 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 had their onset in service or are otherwise causally or etiologically related his military service, including noise exposure therein.  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 develops 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. 

In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3.  The Veteran is hereby notified that it is his responsibility to report for a VA examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.       38 C.F.R. §§ 3.158, 3.655 (2011).  In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable. 

4.  Thereafter, the RO must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full.  The RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the RO must implement corrective procedures at once. 

5.  Thereafter, and following any other indicated development, the RO must readjudicate the appealed issues.  If any appeal remains denied, the Veteran and his attorney should be provided a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision.  They should then be afforded an applicable time to respond. 

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 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).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs