Citation Nr: 1301876 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-15 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned at the RO in December 2011. A transcript of the hearing is of record. In April 2012, the Board reopened the previously denied claim for hearing loss and remanded the merits of the service connection claims for hearing loss and tinnitus to the agency of original jurisdiction (AOJ) for further development and consideration. Unfortunately, still further development and consideration by the AOJ is necessary. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. There are currently no pertinent records in the paperless file that are not also in the paper claims file. However, any further development or adjudication of this matter should take into account this paperless claims file. As noted in the prior Board remand, the issues of entitlement to service connection for headaches and service connection for eye problems have been raised by the record. It still does not appear that these issues have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again 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 Veteran if further action is required. REMAND The Veteran contends that he currently has hearing loss and tinnitus as a result of acoustic trauma and an ear bleed that occurred while working with cannons during active duty service in Germany. Service personnel records (including the DD Form 214) confirm that he served as a cannon crewman for part of his service. The Veteran also reported hearing loss at his 1984 separation examination, and there are pertinent records concerning evaluation at that time, including Brain Stem Evoked Response (BSER) testing results and interpretation. However, there are no records currently in the claims file concerning the Veteran's reported treatment for an ear bleed in 1983 or 1984, which he states occurred at the U.S. Army Hospital in Nuremberg. Hospital records may be kept separately from other service treatment records, and it does not appear that efforts have been made to obtain such records. Therefore, the case must be remanded to attempt to obtain any such records. This case was previously remanded to afford the Veteran a new VA examination to obtain opinions and sufficient rationale as to the etiology of his claimed hearing loss and tinnitus. The Veteran was afforded a VA examination in May 2012, and opinions with rationale were provided. The examiner explained that there was a long history of unreliable testing, including on the current examination. It is not clear; however, whether the examiner found that the Veteran had a current hearing loss. The examiner also referred to audiological records dated in October and November 2002 from the Dallas VA Medical Center (MC), which are not associated with the claims file. Such records must be obtained and associated with the claims file upon remand. Further, the May 2012 VA examiner, who was an audiologist, stated that it out of the scope of her practice to provide an opinion as to the effects of the reported in-service ear bleed. Therefore, the claims file should be forwarded to an ear, nose, and throat (ENT) specialist for etiological opinions, upon review of all evidence. See Greene v. Derwinski, 1 Vet. App. 121, 123-4 (1991) A new examination of the Veteran should be scheduled only if deemed necessary by the examiner. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the audiological records and test results from the Dallas VAMC dated in October 2002 and November 2002, which are referenced in the May 2012 examination report. 2. Request any records from the U.S. Army Hospital in Nuremberg concerning the Veteran's treatment for hearing difficulties and/or ear bleed from 1983 to 1984. Requests should be made to the appropriate agencies or records repositories, to include directly to the hospital, as necessary. 3. Requests for records from Federal agencies, including VA and the military, must continue until they are obtained; unless it is reasonably certain that such records do not exist or further efforts to obtain them would be futile. Any such determination must be documented in the claims file. If any records cannot be obtained, the Veteran should be notified; and informed of the efforts made to obtain the record and any further action that will be taken with regard to the claim. 4. After completing the above-described development, forward the entire claims file including a copy of this remand to an ENT specialist (or other appropriate specialist) for an opinion as to the etiology of the Veteran's claimed hearing loss and tinnitus. (The Veteran should not be scheduled for a VA examination unless that is deemed necessary by the examiner.) The examiner should respond to the following: (a) Does the Veteran currently have a right or left ear hearing loss disability for VA purposes? If so, state the basis for such diagnosis (puretone thresholds and/or speech discrimination scores; or an estimate that those scores would be severe enough to meet VA definitions of hearing loss). (b) For any currently diagnosed hearing loss disability, is it at least as likely as not (probability of 50 percent or more) that such disability is the result of any incident or injury during active duty service? (c) Also, is it at least as likely as not that organic disease of the nervous system (sensorineural hearing loss) in either ear manifested to a degree of 10 percent or more within one year after the Veteran's separation from active duty, or by April 1985? (d) Is it at least as likely as not that the Veteran's currently reported tinnitus (in either ear) is the result of any incident or injury during service? (e) In responding to each of the above questions, the examiner should address the following: (i) Note the in-service audiology evaluations and history, the post-service VA and private audiology evaluations, and the Veteran's reports of hearing loss and tinnitus beginning with exposure to loud noise while firing cannons and continuing since that time. The examiner should presume that the Veteran had in-service noise exposure from firing cannons. If the examiner discounts the Veteran's reports concerning the timing of his symptoms, a reason must be provided for doing so. (ii) Explain or comment on the results of prior audiological evaluations that have been noted to be inconsistent and unreliable, as well as the BSER test results in service, and the comments by the prior VA examiners concerning transient hearing loss. In particular, explain the significance of the notation of "non-organic loss" with "normal hearing" (around 20 decibels) in connection with the BSER results during service, and the relationship (if any) of such results to any current hearing loss or tinnitus. (iii) Explain or comment on the reported ear bleed during service as a result of cannon fire, and the relationship, if any, of such reported injury to the Veteran's claimed hearing loss and tinnitus. If the examiner discounts the Veteran's reports concerning treatment for an ear bleed, a reason must be provided for doing so. Reasons must be provided for any opinion offered. These should reflect consideration of all lay and medical evidence. If any requested opinion cannot be offered without resorting to mere speculation, the examiner should indicate such and explain why a non-speculative opinion cannot be offered. 5. The AOJ should review the opinion report to ensure that it responds to the questions contained herein and contains adequate reasoning and explanation for each opinion offered. If it does not, the report should be returned to the examiner for an addendum. 6. If any claim on appeal remains denied, issue a supplemental statement of the case. Then the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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. 2012). _________________________________________________ Mark D. Hindin 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) (2012).