Citation Nr: 1306337 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-18 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and S.H. ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the United States Navy from May 1951 to April 1955. This matter is 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 Montgomery, Alabama, which denied the Veteran's service-connection claims for a bilateral hearing loss disability and for tinnitus. The Veteran disagreed with these determinations, and perfected an appeal as to both issues. In December 2012, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the Veteran's electronic claims folder, as maintained by the Virtual VA system. 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 any action on his part is required. REMAND While further delay is regrettable, the Board finds that additional evidentiary development is required before the Veteran's claims may be adjudicated on their merits. See 38 C.F.R. § 19.9 (2012). VA treatment records At the December 2012 videoconference hearing, the Veteran indicated that he began receiving treatment for his hearing loss and tinnitus disabilities at VA's healthcare facilities in 2001. See December 2012 hearing transcript, pp. 6-7. Indeed, he specifically reported to a June 2009 VA audiological examiner that he was fitted with hearing aids at the Tuscaloosa VA Medical Center (VAMC) in 2001. See June 2009 VA examination report. It does not appear that any of the Veteran's VA treatment records have been associated with his physical or electronic claims file. It is the duty of VA to assist a veteran in obtaining records from Federal agencies, including VA Medical Centers. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, all outstanding VA treatment reports dated from 2001 to the present day that are relevant to the Veteran's hearing loss and tinnitus claims should be obtained and associated with the claims file. VA audiological examination In essence, the Veteran contends that he has current hearing loss and tinnitus disabilities that had their onset in, or are otherwise related to his period of active duty military service from 1951 to 1955. The Veteran reports that he was exposed to noise trauma in service from jet aircraft engines while working on runways and flight decks without hearing protection throughout his four years of service. See December 2012 hearing transcript, pp. 3-4. The Veteran was afforded a VA audiological examination in June 2009, and the VA examiner diagnosed both tinnitus and a bilateral hearing loss disability for VA purposes. The VA examiner acknowledged the Veteran's in-service noise exposure from aircrafts during service, but also noted that the Veteran experienced additional post-service occupational noise exposure while working in an automobile body shop for thirty-five years. Upon review of the record, the VA examiner determined that she could not formulate an opinion as to whether the Veteran's current hearing loss disability was as likely as not due to his in-service acoustic trauma without resort to speculation. By way of rationale, the examiner stated that the Veteran reported both military and occupational noise exposure; therefore, without frequency-specific audiometric information from the time of his separation from service, there was no definitive way to determine when the Veteran's hearing loss began. See June 2009 VA examination report. With respect to tinnitus, the June 2009 VA examiner indicated that the onset of the Veteran's tinnitus was "sometime during the last several years, since 2001." Based largely on this reported date of onset, which is more than forty-five years since the Veteran's separation from service, the VA examiner determined that the Veteran's tinnitus was not caused by or a result of excessive noise exposure during military service. See June 2009 VA examination report. As was noted above, the Veteran recently testified before the Board at a December 2012 videoconference hearing. At this hearing, the Veteran wanted to make clear that his post-service duties in the automobile body shop did not include working around significantly loud noises, as he generally worked on matters of quality control and did not perform regular duties on the actual assembly line. See December 2012 hearing transcript, pp. 5, 8. The Veteran also asserted that the June 2009 VA examination report was not entirely accurate with respect to the onset date of his tinnitus, and clarified that it was in 2001 when he first started receiving treatment from VA for tinnitus, but that he first noticed symptoms of both hearing loss and tinnitus during his period of active duty service in the 1950s. See December 2012 hearing transcript, pp. 5-6. Indeed, the Veteran reported in his September 2009 Notice of Disagreement that he misunderstood the June 2009 VA examiner's questions. The Veteran is certainly competent to attest to the date of onset of his own observable symptoms [including diminished hearing and ringing in the ears], as well as the extent to which he worked in or around loud noises in his post-service occupation. In light of the Veteran's clarifying testimony described above, as well as the fact that there appear to be over ten years of outstanding VA treatment records that were not reviewed by the June 2009 VA examiner prior to formulating her opinion, the Board believes that another VA audiological examination should be scheduled, and that a VA examiner should revisit the question of whether the Veteran's hearing loss and/or tinnitus disabilities had their onset in, or are otherwise related to his period of active duty military service. See 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED to the RO/AMC for the following: 1. The RO/AMC should ask the Veteran to identify the provider(s) of any treatment or evaluation he has received for his bilateral hearing loss and/or tinnitus disabilities, and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO/AMC should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. The RO/AMC should specifically secure for the record copies of the complete record of all VA treatment the Veteran has received for his bilateral hearing loss and tinnitus disabilities at the Tuscaloosa VAMC since 2001. Efforts to obtain these records should be memorialized in the Veteran's claims file. 2. After associating all additionally obtained treatment records with the Veteran's claims file, the RO/AMC should then schedule the Veteran for a VA audiological examination to assess the current nature and etiology of his claimed bilateral hearing loss and tinnitus disabilities. The entire claims file [i.e. both the paper claims file and any medical records contained in Virtual VA] should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. After examining the Veteran, and considering his pertinent medical history and competent lay statements regarding observable symptomatology, the examiner should provide an opinion as to the following questions: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a current bilateral hearing loss disability that had its onset in, or is otherwise related to his period of active duty military service? The examiner should assume that the Veteran experienced in-service exposure to noise trauma from working around aircrafts as he so describes. If it is as likely as not that the Veteran's hearing loss began after his separation, but within his first post-service year, this should be made clear. b.) Is it at least as likely as not (50 percent probability or more) that the Veteran's tinnitus disability had its onset in, or is otherwise related to his period of active duty military service? As above, the examiner should assume that the Veteran experienced in-service exposure to noise trauma from working around aircrafts as he so describes. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review all the evidence of record [to include any and all relevant evidence added to the Veteran's electronic claims folder] and readjudicate his claims for service connection. If either remains denied, the RO/AMC should provide the Veteran and his representative with a supplemental statement of the case (SSOC) 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 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 that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ A. ISHIZAWAR Acting 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).