Citation Nr: 1307258 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-46 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection to bilateral hearing loss. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from February 1964 to December 1967 and served in the United States Navy Reserve from February 1968 to December 2002. This matter arises before the Board of Veterans' Appeals (Board) on appeal from May 2004 and December 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 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 While the Board regrets further delay, after review of the record, the Board finds that a remand for further development is warranted with respect to the issues of entitlement to service connection for bilateral hearing loss and bilateral carpal tunnel syndrome. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty is defined as full-time duty in the Armed Forces, other than active duty for training. See 38 U.S.C.A. § 101(21)(A) (West 2002). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A) (West 2002); 38 C.F.R. § 3.6(c) (2012). The definition also means, in the case of members of the Army National Guard or Air National Guard of any state, full-time duty under section 316, 502, 503, 504, or 505 of title 32 U.S. Code. 38 U.S.C.A. § 101(22)(C). The record indicates that the Veteran had one period of active duty service in the Navy from February 1964 to December 1967, and various periods of ACDUTRA and INACDUTRA in the Naval Reserves dating from February 1968 to December 2002. The Veteran's DD Form 214 noted that he worked as a pipefitter during his period of active duty. With regard to the Veteran's claim for bilateral carpal tunnel syndrome, the Board notes that the first mention in the record of carpal tunnel syndrome is a September 2001 private treatment note pertaining primarily to the Veteran's lumbar and cervical spine disorders. Subsequently in a November 2001 Naval Reserve treatment record it is noted among the Veteran's medical problems. The Veteran contends that his carpal tunnel syndrome is related to or was aggravated by his military service to include his active duty service, as well as Naval reserve service. With regard to the Veteran's claim for bilateral hearing loss, the Board notes that for purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran demonstrated hearing loss bilaterally for VA purposes, initially, in May 1988. See May 1988 Audiological Evaluation. It appears from the record that this was during a period of INACDUTRA. Two months later, in July 1988, the Veteran again sought medical attention during a period of ACDUTRA for his hearing loss and was diagnosed with a eustachian tube dysfunction. Subsequent medical records associated with his Naval Reserve service, dated in July 1989 additionally diagnosed the Veteran with presbycosis. A December 1999 VA treatment record noted that the Veteran was diagnosed with Menieres Disease. The Veteran contends that his hearing loss is related to or aggravated by his military service to include his active duty service, as well as Naval reserve service. The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran, as a lay person, can attest to factual matters of which she had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent and credible to say that he experienced hearing loss and pain in relation to his carpal tunnel syndrome during his active and reserve service. Moreover, there is evidence that both of the Veteran's claimed disabilities were noted in his Reserve service records. With regard to the Veteran's claim for hearing loss, it is not clear whether his hearing loss is the result of an injury, e.g. acoustic trauma, or a disease, e.g. a eustachian tube dysfunction or Menieres Disease. It is also unclear as to the nature of the Veteran's service at the time the diagnosis of hearing loss was made. With consideration of the above, the Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claims and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2012). Under the circumstances presented in this case, the Board finds that the Veteran has met the guidance set forth in McLendon. In consideration of the Veteran's lay statements as well as the evidence that the Veteran had complaints of carpal tunnel syndrome and hearing loss during his Naval Reserve service, as well as now, and with recognition of the "low threshold" as announced in McLendon v. Nicholson, the Board finds that a remand for a VA examination to determine if the Veteran has carpal tunnel syndrome and hearing loss that are related to his active duty service, or any period of ACDUTRA or INACDUTRA, is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity or entities and request that (1) it verify the Veteran's specific periods of ACDUTRA, INACDUTRA, with the Naval Reserve unit to which the Veteran was assigned and (2) forward all available service treatment and personnel records associated with such duty and not already of record for incorporation into the record. If the above referenced records cannot be obtained, the claims folder should indicate this fact and should document the efforts made to obtain those records. The Veteran should also be notified if no records are obtained and of the efforts made in this regard. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any current bilateral hearing loss disorder. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should specifically address whether the Veteran's hearing loss is the result of an injury, e.g. acoustic trauma, or a disease, to include a eustachian tube dysfunction, presbycosis, or Menieres Disease. The examiner should address whether or not any current bilateral hearing loss disorder was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to any period of the Veteran's military service, to include any period of ACDUTRA. If it is determined that the Veteran's hearing loss is the result of an injury, e.g. acoustic trauma, then it should also be determined if it is related to any period INACDUTRA. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 3. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any current bilateral carpal tunnel syndrome. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not any current bilateral carpal tunnel syndrome disorder was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to any period of the Veteran's military service, to include any period of ACDUTRA or INACDUTRA. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 4. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). 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). _________________________________________________ JOHN Z. JONES 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).