Citation Nr: 1309643 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 07-00 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to otitis media, left ear. 2. Entitlement to service connection for tinnitus, to include as secondary to otitis media, left ear. 3. Entitlement to service connection for otitis media, left ear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1982, and from February 2003 to January 2005. He served in the Army National Guard from October 1982 to August 1987. He has additional unverified service in the National Guard and the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case has subsequently been transferred to the Seattle, Washington RO. The bilateral hearing loss and tinnitus issues have been recharacterized as noted on the title page to better reflect the medical evidence of record and the Veteran's contentions. In February 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO). In June 2009, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). The Board notes that the VLJ who conducted the June 2009 Travel Board hearing is no longer employed with the Board. In July 2012, the Veteran testified at a video conference hearing before the undersigned VLJ. Transcripts of the hearings are associated with the claims folder. The Board remanded the case in December 2009 and September 2012 for additional development. There is no indication in the record that the RO has developed and adjudicated the Veteran's informal claim of entitlement to service connection for heart disease, claimed as secondary to service-connected hypertension. Therefore, this claim is again referred to the RO for appropriate action. 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 Bilateral Hearing Loss The Veteran contends that he suffers from bilateral hearing loss due to acoustic trauma caused by excessive noise exposure while working as a heavy mobile equipment mechanic during his periods of active duty or, in the alternative, due to several ear infections during active duty. The DD 214 from the Veteran's first period of active service shows that his military occupational specialty (MOS) was hawk missile crew member. He also earned the M-16 Rifle Marksman Ribbon and a Second Class hand grenade badge. The Board finds that the Veteran's statements concerning in-service noise exposure during his first period of active service are credible when viewed in conjunction with the available evidence and are consistent with his occupation and history of noise exposure. The NGB 22 from the Veteran's first period of National Guard service shows that his MOS was wheeled vehicle repairman and lightweight vehicle mechanic. He also earned the M-16 (Expert) Badge. VA Fast Letter 10-35 (September 2010) includes a Duty MOS Noise Exposure Listing, which establishes that wheeled vehicle mechanics are presumed to be exposed to high noise exposure. Thus, it is conceded that the Veteran had noise exposure throughout his military career. The evidence shows that the Veteran had a period of active service from June 1979 to June 1982, subsequent service in the National Guard from October 1982 to August 1997, and subsequent service in the Army Reserve starting in August 1997. He had a second period of active service from February 2003 to January 2005, and subsequent service in the National Guard. The dates of the Reserve service are not contained in the claims folder and must be confirmed. Similarly, the claims folder does not contain the dates of any periods of active duty for training purposes (ACDUTRA) or inactive duty for training (INACDUTRA). These dates should also be confirmed and listed in the claims folder. At this point, the Board notes that hearing loss that is the result of acoustic trauma sustained during either ACDUTRA or INACDUTRA is eligible for service connection, as it is considered to be the result of injury. 38 U.S.C.A. § 101(24) (West 2002). The record also establishes that service treatment records (STRs) from the Veteran's first active duty period are missing. The Board notes that VA has heightened duties when a veteran's STRs are missing. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In September 2012, the Board remanded this issue so that a VA examination could be scheduled to determine the nature and etiology of any hearing loss. That examination is inadequate. The reason the Board remanded the hearing loss claim for an examination was because prior examiners did not accurately consider the Veteran's periods of service. Unfortunately, the November 2012 VA examiner also failed to accurately consider the Veteran's periods of service. In addition, the November 2012 VA examiner provided a negative nexus opinion after noting that the audiogram findings did not show hearing loss pursuant to Section 3.385. However, in December 2010, the Veteran underwent a VA audiological examination. Those audiogram findings reflect hearing loss in both ears pursuant to § 3.385. Service connection may be granted where a disability is shown at any time during the appeal, even if the most recent medical evidence is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Finally, the November 2012 VA examiner did not provide an opinion with respect to secondary service connection. Given the evidence of acoustic trauma in service, the diagnosis of a disability, the contended theory of secondary service connection, and the missing information with respect to the Veteran's service dates, the Board finds that the Veteran should be scheduled for an additional VA examination in order to determine the etiology of his bilateral hearing loss. Otitis Media, Left Ear During the July 2012 hearing, the Veteran stated that he was scheduled for a CAT scan of his left ear the following day. He testified "they're thinking that I have some kind of growth or something on the bone behind my ear." He further indicated that he would be submitting additional evidence afterwards. See July 2012 Hearing Transcript at 7. The VLJ indicated that this issue would be deferred pending submission of the CAT scan results. Id. at 12. A careful review of the paper claims file and the Virtual VA claims file shows that no additional evidence has been received from the Veteran. The RO did not request these records. On remand, the actual report of the July 2012 CAT scan should be obtained and associated with the Veteran's claims folder and considered in connection with the otitis media claim. See 38 U.S.C.A § 5103A(b)(1); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.Cir.2010). In addition, the November 2012 Remand Order instructed the AOJ to schedule a VA examination in order to determine the nature and etiology of any otitis media, left ear. This was not done. To the extent that there has not been substantial compliance with the November 2012 remand directives, a remand is once again necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board or the Court are not complied with, the Board itself errs in failing to insure compliance). Tinnitus The Board finds that the tinnitus claim is inextricably intertwined with the claim for service connection for otitis media, left ear, because the November 2011 VA examiner opined that the Veteran's tinnitus is "more likely than not" attributable to middle ear dysfunction. Consequently, as the otitis media claim is being remanded, so must the claim for tinnitus as the outcome of the first will likely determine the outcome of the second. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Confirm all dates of Reserve and National Guard service, as well as all dates of ACDUTRA and INACDUTRA. In this regard, a statement showing only retirement points will not suffice. Written confirmation of these dates should be placed in the claims folder. If no such records are available, specific confirmation of that fact should be noted in the claims folder, and the Veteran should be so informed. 2. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any otitis media, left ear. The claims file should be made available to the examiner in connection with the examination. The examiner should be informed that the entirety of the Veteran's service personnel and treatment records are not available. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should opine as to the whether the Veteran's otitis media, left ear, (initially manifested in 2002) underwent an increase in disability during active service (February 2003 to January 2005) beyond any natural progress. A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completion of the development requested above, schedule the Veteran for a VA audiometric examination. The claims folder should be made available to the examiner in connection with the examination. The examiner should be informed that the entirety of the Veteran's service personnel and treatment records are not available. The examiner should determine whether bilateral hearing loss (including that found on the December 2010 VA examination) is at least as likely as not, i.e., 50 percent probability or greater, related to the Veteran's conceded in-service noise exposure during either of the two active service periods (from June 1979 to June 1982, and from February 2003 to January 2005) or a verified period of ACDUTRA or INACDUTRA as noted in the claims file. If the Veteran's currently diagnosed bilateral hearing loss is not found to have had its clinical onset during either active service period or a verified period of ACDUTRA or INACDUTRA, the examiner should then opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that this disability was caused or aggravated by any service-connected disability, to include otitis media, left ear. If aggravated, specify the baseline of hearing loss disability prior to aggravation, and the permanent, measurable increase in hearing loss resulting from the aggravation. 4. Thereafter, readjudicate the service connection claims on appeal. If such action does not resolve the claims, a supplemental statement of the case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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).