Citation Nr: 1311543 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-49 625 ) 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. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran's appeal had originally included the issue of entitlement to service connection for residuals of a right ankle sprain. However, the Veteran did not submit a substantive appeal for that particular issue following the issuance of the November 2010 statement of the case. In fact, the Veteran only discussed the issues of entitlement to service connection for bilateral hearing loss and tinnitus in his December 2010 VA Form 9. See 38 C.F.R. § 20.202. Accordingly, the issue of entitlement to service connection for residuals of a right ankle sprain no longer remains in appellate status, and no further consideration is required. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Initially, the Board finds that a remand of the Veteran's claim is necessary because the evidence of record suggests that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA). In this regard, the Veteran indicated in a December 2012 statement that he was in receipt of disability benefits from SSA. However, it does not appear that any attempt has been made to obtain a copy of any SSA determination or the records upon which a decision may have been based. Where there has been a determination that the veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010). Therefore, the RO should obtain and associate such records with the Veteran's claims file. While on remand, updated VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). In a December 2012 letter, the Veteran informed the Board that he was seen in a VA outpatient clinic in November 2012. A review of both the claims file and the Virtual VA file shows that the record does not include any VA treatment records dated after November 2010. Finally, the Board notes that the Veteran was afforded a VA examination in November 2012 during which he was found to have bilateral hearing loss that met the criteria of 38 C.F.R. § 3.385. The examiner reviewed the Veteran's claims file, including the audiometric results from his enlistment and separation examinations, and observed that the hearing sensitivity improved at 4000 Hertz from enlistment to separation. Therefore, he opined that the Veteran's hearing loss was not a result of an event in military service. Instead, he noted that hearing loss existed prior to service and stated that the preexisting right ear hearing loss was aggravated therein. In a December 2012 follow-up email, the same VA examiner indicated that he selected the wrong box pertaining to aggravation, and upon further review, determined that the Veteran's right ear hearing loss was not aggravated by military service. He again noted that the Veteran's hearing had actually improved between enlistment and separation. Notably, the VA examiner appears to have based his opinions, in part, on the fact that the Veteran had preexisting right ear hearing loss. However, the October 1971 pre-induction examination found the Veteran's ears and drums to be normal, and the auditory threshold was not greater than 40 decibels in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. He also did not have auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz or speech recognition scores less than 94 percent. As such, the Veteran was not shown to have bilateral hearing loss pursuant to 38 C.F.R. § 3.385. As such, the presumption of soundness applies. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine the nature and etiology of the Veteran's hearing loss. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO/AMC should request the Veteran's VA treatment records from November 2010 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. The RO should refer the Veteran's claims folder to the November 2012 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's bilateral hearing loss. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service personnel and treatment records, post-service medical records, and assertions. The Veteran has contended that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. For purposes of this examination, the examiner should assume that the Veteran did not have hearing loss in either ear prior to his military service. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss is causally or etiologically related to his military service, including noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). 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). _________________________________________________ JESSICA J. WILLS 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).