Citation Nr: 1302299 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-25 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1970 to December 1974, April 1977 to July 1979, and December 1982 to December 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled to testify at a hearing before the Board in November 2012. However, in an October 2012 statement, he withdrew his hearing request. 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, the Board finds that additional procedural actions must be undertaken prior to adjudication of the claims. First, the RO has determined that significant portions of the Veteran's service treatment records are missing. In this respect, the Veteran has supplied a July 1979 Report of Medical Examination as well as a July 1982 audiogram. The RO, however, has only obtained the Veteran's reserve service records but no records from his three periods of active duty service. The RO has made a formal finding that additional records are unavailable. See April 2010 Formal Finding on the Unavailability of Service Medical Records. As set forth below, however, the Board finds that additional efforts need to be taken to attempt to locate the Veteran's complete records. 38 C.F.R. § 3.159(c)(2) (2012). Here, according to the April 2010 memorandum, the RO contacted the Records Management Center (RMC) and received a negative response. According to VA's Adjudication Procedures Manual, however, the RMC houses records for veterans of the United States Marine Corps (USMC) for veterans with a separation date on or after May 1, 1994. See M21-MR, III.iii.2.A.4.f. According to VA's Adjudication Procedures Manual, for veterans who separated from the United States Marine Corps prior to May 1, 1994, medical and personnel records were sent to the United States Marine Corps Headquarters in Quantico, VA (address code 41). Thereafter, a year after retirement or at the end of the military obligation, they are transferred to the National Personnel Records Center (NPRC). M21-MR, III.iii.2.b.16.b. The Manual also indicates that the records of Marines who have additional reserve obligations may go to either the reserve or guard unit, or to the Marine Corps Mobilization Command in Kansas City, Missouri. As such, additional efforts must be undertaken prior to the adjudication of the claims on appeal. Further, should the RO/AMC be unable to obtain the records, in these situations, VA has a heightened duty to assist a veteran with the development of evidence in support of his or her claims, including a duty to search for alternate records as well as an increased duty on the Board's part to fully explain its findings and conclusions. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The VA Adjudication Procedure Manual sets forth the procedure for development of alternative evidence. See M21-1 MR, III.iii.2.E. Additionally, when service records cannot be found, the Veteran is to be notified of the efforts made to obtain them, and of any further action VA will take in respect to the claim. See 38 C.F.R. § 3.159(e) (2012). Finally, while the Veteran in the current appeal underwent a VA examination in August 2008, the examiner was unable to render an adequate opinion as to etiology of hearing loss and tinnitus without the earlier service treatment records. Moreover, the rationale provided as to the etiology of the Veteran's hearing loss and tinnitus is insufficient. First, the examiner acknowledged that high frequency hearing loss was shown in July 1979 audiogram. He provided an opinion stating that hearing loss was less likely due to acoustic trauma in service, because there was not a significant threshold shift in the Veteran's hearing in a September 1993 audiogram. However, the fact that there was no significant threshold shift is not dispositive of the claim. Rather, the United States Court of Appeals for Veterans Claims (Court) has held that the regulation defining a hearing loss disability for VA purposes, 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, the examiner speculates that current hearing loss and tinnitus may be due to long-term occupational exposure, reserve duty noise, aging, and diabetes. However, without earlier service records, the examiner could not render an opinion without resorting to speculation. The Court has held that a VA examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the Court held that simply concluding that the etiology of a disability could not be resolved without speculation, without providing further explanation, was inadequate. Id. Thus, on current remand, the Veteran should be afforded another examination, which includes opinions from the examiner as to the most likely etiology of the Veteran's bilateral hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should make every effort to locate the Veteran's service treatment records. The RO/AMC should specifically make requests to the United States Marine Corps Headquarters in Quantico, Virginia; the NPRC; the Veteran's Marine Corps reserve unit; and the Marine Corps Mobilization Command in Kansas City, Missouri. Any such available records should be associated with the claims folder. If additional service treatment records cannot be found, the Veteran should be so informed of their unavailability, of the attempts made to obtain the documents, of any further action VA will take with respect to these service connection claims (including in particular in procuring evidence pertaining to any hearing and tinnitus problems that the Veteran may have experienced in service), and of his opportunity to submit alternative evidence. See M21-1MR, III.iii.2E and 38 C.F.R. § 3.159(e). Notations should be made in the claims folder as to all attempts made to obtain these service treatment records-and of any necessary notice letters forwarded to the Veteran. 2. Thereafter, schedule the Veteran for a VA audiologic examination. The claims file and a copy of this remand must be provided to the examiner for review in conjunction with the evaluation. (A notation should be made in the examination report that this review has been accomplished.) All appropriate tests and studies, including audiometric testing, should be accomplished. The Veteran should be asked to provide a complete medical history, pertaining to his hearing loss and tinnitus, if possible. Based on a review of the Veteran's claims file, an interview with the Veteran, consideration of the Veteran's lay statements regarding the development and progression of his hearing loss and tinnitus, and the results of the physical examination, the examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that his bilateral hearing loss is related to active service or any incident of service, to include his reported acoustic trauma. This examiner also should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tinnitus, if diagnosed, is related to active service or any incident of service, to include the Veteran's reported acoustic trauma. A complete rationale must be provided for any opinions expressed. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why and what, if any, additional evidence would be necessary before an opinion could be provided. 3. Then, readjudicate the service connection claims on appeal. If the determinations remain unfavorable to the Veteran, the RO/AMC should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to these issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).