Citation Nr: 1309092 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 12-34 098 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from July 1955 to July 1958. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2012 rating decision in which the RO denied the Veteran's claim for service connection for bilateral hearing loss. In June 2012, the Veteran filed a notice of disagreement (NOD) with this rating decision. A statement of the case (SOC) was issued in November 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2012. A review of the Virtual VA claims processing system reveals VA treatment records dated through February 2012; the November 2012 SOC notes review of such records. In February 2013, the Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, it is noted that, in the June 2012 NOD, the Veteran appears to raise claims for service connection for tinnitus and headaches. Such claims have not been addressed by the RO. As such, these matters are not properly before the Board, and are referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that further RO action on the claim for service connection is warranted. The Veteran asserts that his exposure to loud noise while in service has caused the claimed hearing loss. Specifically, he asserts that his in-service noise exposure occurred while transporting ammunition to the firing range rather than while performing his duties as a draftsman. In this regard, the Board notes that the Veteran's Form DD-214 show that he served as a draftsman, and was not likely exposed to loud noise in this position, and contain no indication that he was responsible for transporting ammunition. The Veteran underwent VA audiological evaluation in November 2011. Audiometric testing revealed hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). See 38 C.F.R. § 3.385 (2012). In an April 2012 Disability Benefits Questionnaire (DBQ), the same audiologist opined that it was at least as likely as not that the Veteran's hearing loss was related to his service due to his reports of noise exposure from the rifle range and tank range and his history of occupational noise exposure. The Veteran also had reported post-service occupational noise exposure from work in construction. However, the November 2011 is examiner did not address the Veteran's reports of undergoing ear surgery in 1960, during which part of his inner ear was replaced, his history of a left perforated ear drum and his history of childhood ear infections. In addition, the Veteran's treating VA ear, nose and throat (ENT) physician opined in April 2007 that the Veteran's right ear hearing loss was due to military and occupational noise exposure and that his left ear hearing loss was due to his previous history of ear infections, perforation and surgery; however, this opinion was not fully explained, and the audiologist who subsequently evaluated the Veteran did not explicitly address this opinion. The Board points out that, in this case, the Veteran's reports of a childhood history of ear infections, as well as the April 2007 opinion of the Veteran's treating ENT physician attributing his left ear hearing loss to such ear infections, raises the possibility that the Veteran's hearing loss may have pre-existed service. However, there is no report of service entrance examination contained in the claims file, and, in an August 2011 Memorandum , the RO made a formal finding as to the unavailability of the Veteran's service treatment records, stating that they had been destroyed in the 1973 fire at the National Personnel Records Center (NPRC). Pertinent to this claim, the Board notes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). To rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As noted, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). In the absence of such an examination-or, as here, the report of such an examination-there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe, 7 Vet. App. at 238. Here, as there is no existing entrance examination report, the Veteran is presumed sound at service entry. However, questions remain as to whether there is clear and unmistakable evidence to rebut the presumption, and, if not, to establish whether the currently-claimed disability was incurred in service, and none of the medical evidence and opinions of record includes sufficient findings in this regard. Accordingly, the Board finds that further medical opinion with sufficient findings-based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should forward the claims file to the ENT physician who provided same audiologist who evaluated the Veteran in November 2011 and completed the April 2012 DBQ for an addendum opinion. The RO should only arrange for further examination of the Veteran if the prior examiner is unavailable, or if further examination of the Veteran is deemed necessary. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further opinion, to ensure that the record before the physician is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As regards VA records, the claims file currently includes outpatient treatment records from the VA Connecticut Healthcare System, including at the Community Based Outpatient Clinic (CBOC) in Waterbury, dated through February 2012. Hence, there exists the possibility that more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain all records of pertinent treatment from the Waterbury CBOC (since February 2012), following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Connecticut Healthcare System, including the CBOC in Waterbury, all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since February 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, to the ENT physician who provided the April 2007 opinion for an addendum opinion. With respect to hearing loss in each ear, the physician should provide an opinion, consistent with sound medical judgment, as to (a) whether the disability clearly and unmistakably existed prior to service entrance, and, if so (b) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. For each disability deemed not to have clearly and unmistakably existed prior to service, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or was otherwise incurred in service (even if subsequent noise exposure contributed to the hearing loss). In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, the November 2011 and April 2012 opinions of a VA audiologist, and all lay assertions, to include the Veteran's reported history of childhood ear infections, his reported post-service ear surgery and his reported history of a perforated left ear drum. If the ENT physician who provided the April 2007 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, that fact should be documented in the claims file, arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination and testing findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).