Citation Nr: 1315310 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-38 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The record reveals that theVeteran had active military service from April 1966 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arises from an April 2009 rating decision in which the Regional Office (RO), in St. Petersburg, Florida, denied service connection for bilateral hearing loss. The Veteran was notified of the rating decision in May 2009. In June 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2009 and a supplemental statement of the case (SSOC) was issued in September 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. The Board notes that, during the pendency of the appeal, the Veteran was granted service-connection for tinnitus upon a showing of exposure to acoustic trauma in military service in a December 2011 rating decision. A review of the Virtual VA paperless claims processing system revealed a February 2011 rating decision and a December 2011 rating decision by the RO. Nothing further pertinent to the present appeal was available. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to 1) obtain the Veteran's outstanding VA outpatient treatment records and 2) obtain a new VA examination. First, the Veteran's outstanding VA outpatient treatment records must be obtained. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). The Veteran has indicated in his September 2009 VA Form 9 that he was treated for bilateral hearing loss at the VA Medical Center in Providence, Rhode Island. Although records dated September 1997 to July 1999 are associated with the claims file, no record of treatment for bilateral hearing loss is found and it is unclear if the Veteran may have been referencing earlier or later treatment records from that facility as he stated that he had such treatment for "years." Further, the Veteran also stated that the VA Medical Center in Providence had referred him out to the VA Medical Center in Boston for the treatment of his bilateral hearing loss and no records from that facility are currently associated with the claims file. Also, the Board notes that, in the December 2011 rating decision that granted service-connection for tinnitus, records were referenced from the VA Medical Center in Orlando, Florida dated October 2009 to January 20011, the VA Medical Center in Tampa, Florida dated January 2008 to September 2009, the VA Medical Center in Providence, Rhode Island dated July 1998 to May 2004, and the VA Medical Center in Gainesville, Florida dated January 2005 to April 2009. None of these records are currently associated with the claims file. Accordingly, as these records may have pertinent information regarding the treatment of the Veteran's bilateral hearing loss, VA must obtain them and associate them with the claims file. Second, a new VA examination should be obtained. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124. In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2011). Although hearing loss is not shown in service or within one year of separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Here, the Veteran's first indication of a diagnosis of bilateral hearing loss occurs via a VA outpatient treatment record from the VA Medical Center in Orlando, Florida dated December 2008, in which it indicated that the Veteran had mild to moderate high frequency sensorineural hearing loss. Although the Veteran indicated in his September 2009 VA Form 9 that he had been seen and treated for complaints of bilateral hearing loss years earlier at the VA Medical Center in Providence, Rhode Island, no indication of such was found in the treatment notes of record, which were dated from September 1997 to July 1999. In a November 1997 treatment note, there was only one mention of a complaint of tinnitus that had been going on for more than ten years. An April 2009 VA audiological examination was administered and showed the Veteran's complaints of bilateral hearing loss and tinnitus. The examiner noted that the Veteran was exposed to acoustic trauma in service due to his military occupational specialty (MOS) as an aircraft mechanic and working around aircraft noise. The examiner diagnosed moderate sensorineural hearing loss in the right ear and moderate to moderately severe sensorineural hearing loss in the left ear. He opined that the Veteran's bilateral loss was less likely than not related to the Veteran's military service. The examiner referenced the Veteran's service entrance and exit audiological examinations, noting that there were no indications of hearing loss. He also noted that the Veteran began to complain of tinnitus 10 to 14 years after service. The examiner stated that the length of time between military service and onset of any type of hearing issue supported that it was less likely than not related. No further explanation was provided. The lack of any further support for the stated opinion renders the April 2009 VA examination inadequate. The examiner did not provide any rationale other than the absence of hearing loss noted in service or at separation from service and the length of time in which no symptoms were documented. Such findings in and of themselves cannot serve as the only basis to preclude service connection. Hensley, 5 Vet. App. 159-60. Further, the examiner did not address the extent of the Veteran's post service occupational noise exposure, even though it was stated in the examination that there was some recreational motorcycle use and lawnmower use. Last, the examiner was unable to consider the fact that the Veteran has service-connected tinnitus based upon acoustic trauma in the military or the medical records utilized in the finding of such, as this connection had not yet been established and those records had not been made available at the time of the April 2009 examination. As such, remand is required for an examination with an etiological opinion fully supported by rationale and a full consideration of the available evidence of record. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. In particular, the AMC must obtain all records from the Orlando VA Medical Center Orlando, the VA Medical Center Daytona, the VA Medical Center Gainesville, the VA Medical Center Providence, and the VA Medical Center Boston. 2. Provide the Veteran with an appropriate in-person examination to determine the etiology of the bilateral hearing loss. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The VA examiner should identify the type of bilateral hearing loss (i.e., sensorineural, conductive, mixed, or central) experienced by the Veteran. The examiner also should state whether the Veteran's bilateral hearing loss is a type of hearing loss typically due to acoustic trauma, the aging process, infection, or some other cause. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss was caused or aggravated by the Veteran's military service. The examiner should address the Veteran's assertions of in-service acoustic trauma. The examiner should also elicit further information on the Veteran's post-service occupation and any recreational noise exposure in order to fully ascertain all potential factors affecting the Veteran's hearing loss. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ WAYNE M. BRAEUER 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).