Citation Nr: 1303740 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-12 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for colon cancer, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of the Veteran's claims file was later transferred to the RO in St. Louis, Missouri. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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. REMAND A review of the claims file reveals that additional development on the appeal is warranted. Specifically, there appear to be outstanding VA outpatient treatment records that need to be associated with the Veteran's claims file. Also, the Board finds that the October 2008 VA audiology examiner's opinion is inadequate for adjudication purposes and that another medical opinion is needed. In his April 2008 claim, the Veteran indicated that he was receiving treatment at the St. Louis VA Medical Center (VAMC). In a January 2009 letter, he stated that he was scheduled for a CT scan at the St. Louis later that month. He also said that he had been treated by VA for two years prior to being diagnosed with colon cancer in January 2005. Currently, the claims file only contains outpatient treatment records dated in April, November, and December 2008, and a single record dated in April 2009. Accordingly, any outstanding VA treatment records should be obtained and associated with the record. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Regarding the Veteran's claims for service connection for bilateral hearing loss and tinnitus, he asserts that these disabilities are the result of noise exposure during military service - specifically, noise from weapons and aircrafts while working on the flight line. On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter, introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. In such cases, where there is sufficient evidence of a current disability and the in-service exposure to hazardous noise is conceded based on the Duty MOS Noise Exposure Listing, VA is obligated to request a VA examination and opinion to determine if there is a medical nexus. The level of probability of exposure conceded, such as "Highly Probable" or "Moderate," should be included in the information provided to the examiner in the body of the examination request. Finally, it was noted that the Duty MOS Noise Exposure Listing is not an exclusive means of establishing a Veteran's in-service noise exposure. Claims for service connection of hearing loss must be evaluated in light of all evidence of record in each case, including treatment records and examination results. In this case, the Veteran's personnel records indicate that his primary duty title was Air Policeman. Although the Air Force does not list this specific job title, security forces are listed as having "moderate" probable exposure to hazardous noise during service. Hence, the Veteran's exposure to hazardous noise during service is conceded. The report of the October 2008 VA examination reflects that the Veteran met the VA requirements for a bilateral hearing loss disability pursuant 38 C.F.R. § 3.385. He also reported having mild to severe, bilateral tinnitus. The examiner opined that it was less likely than not that hearing loss and tinnitus were related to service; however, the Board finds that this opinion is inadequate for adjudication purposes for several reasons. The examiner noted that the Veteran only had "minimal" noise exposure during military service; he was not instructed that the probability of noise exposure was "moderate" and that exposure was conceded. Also, the examiner stated that the Veteran said he first noticed his hearing loss four to five years ago and that this was "too long after his military service for it to have been caused by the military;" but he did not provide a rationale for this opinion. In addition, it does not appear that the examiner conducted a thorough review of the claims file. He indicated that a separation examination was not found, but a copy of the Veteran's discharge examination is in the first volume of his claims file. Furthermore, there is a July 1973 private medical record from St. Louis Medical Clinic that notes minimal hearing loss in the Veteran's right ear (25 decibels at 4000 Hertz); however, this was not discussed or apparently considered by the examiner. For these reasons, the Board finds the examiner's opinion inadequate and another medical opinion is needed. 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) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain all outstanding records of evaluation and/or treatment for the Veteran from the VA Health Care System. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. Then, arrange for claims file review by a VA examiner to obtain a supplemental opinion as to hearing loss and tinnitus. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The Veteran, however, should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is instructed that there is a "moderate" probability that the Veteran was exposed to hazardous noise in service and that noise exposure is conceded. The examiner is asked to provide an opinion as whether it is at least as likely as not (50 percent or higher probability) that the Veteran's bilateral hearing loss and tinnitus are related to service. In rendering this opinion, the examiner should note and consider the July 1973 private medical record from St. Louis Medical Clinic, noting minimal loss in the right ear (25 decibels at 4,000 Hertz). All opinions provided are to include sustainable reasons and bases, with references, when necessary, to information in the claims folder. 3. After completion of the above and any additional development deemed necessary, the service connection claims should be reviewed. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). These claims 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. 2012). _________________________________________________ MICHAEL D. LYON 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).