Citation Nr: 1315484 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 11-25 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to November 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied entitlement to service connection for bilateral hearing loss (January 2011) and tinnitus (March 2012). The Veteran testified at a hearing conducted by a local Decision Review Officer in November 2011, and at a hearing conducted via video conference by the undersigned Veterans Law Judge in April 2013. Transcripts of both hearings have been associated with the Veteran's claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran claims that he is entitled to service connection for bilateral hearing loss and tinnitus because they were incurred as a result of his service. He has specifically asserted that his now present hearing loss is due to acoustic trauma experienced during his military service (i.e., loud gun noise) as well as his suffering from "Cat Fever," during his military, as a result of which he was hospitalized. See letter received in June 2010. He added as part of his VA Form 9, dated in August 2011, that his in-service hospitalization was for treatment of severe ear pain. He also in November 2011 asserted that he did not seek service connection for tinnitus earlier because the term was "unfamiliar" to him. See VA Form 21-526b. An April 2010 private medical letter shows that the Veteran had presented with hearing loss, and that he gave a history of in-service acoustic trauma. An accompanying March 2010 audiogram confirmed the presence of bilateral hearing loss. The Board notes at this juncture that the Veteran's service treatment records appear to be incomplete. The record now includes only the Veteran's October 1947 separation examination report (which showed "normal" hearing), and several dental records. The National Personnel Records Center (NPRC) informed VA in October 2010 that no records were available. The Veteran, in October 2010, informed VA that he had none of his in-service medical records and that he was told they were "burned up in a fire in Kansas City." While the record does not include a definitive finding that the Veteran's service treatment records are in fact "fire-related," the Board recognizes that in such cases there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran is considered competent to relate a history of in-service treatment for earache-related problems during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See 38 C.F.R. § 3.159(a)(2). In addition, based on the evidence submitted, including his statements about his service, as well as in consideration of the provided lay statements, the Board finds the Veteran to be credible with respect to his assertions. Thus, previous efforts to obtain any service treatment records, as documented by the RO, are sufficient. In December 2010, a VA audio examination was conducted. The Veteran reported that his hearing loss had existed since the 1980's, and that he stopped having earaches in the 1970's. The Veteran also reported both in-service and post-service acoustic trauma. After examining the Veteran, and noting that bilateral severe mixed (sensorineural and conductive) hearing loss was diagnosed, the examiner opined that the Veteran's hearing loss was "less likely as not" caused by his military service but "more likely" caused by his recreational firearms use. The Veteran also was afforded a VA examination in February 2012 which was limited to his claimed tinnitus. The Veteran reported a history of recurrent tinnitus, but the examiner observed that the Veteran had previously denied having tinnitus. She added that the Veteran had considerable noise exposure associated with [post-service] welding, firearms, and shooting. The examiner also observed that the Veteran had been determined to be nonservice-connected for hearing loss, and that his claimed tinnitus was not related to in-service otitis media. The Veteran tesitifed before the undersigned in April 2013 that he was hospitalized for earaches during his military service. See page three of trancript. He further testified that his hearing acuity worsened several years after his 1947 service discharge, and that his earaches continued from the time of his discharge until about 20 years ago (1993). See pages three and five of transcript. His daughter testified that she remembered her father treating his earaches for many years when she was younger. See page three of transcript. The December 2010 VA examiner did not consider whether the Veteran's hearing loss was related in-service earache-related problems. The February 2012 VA examiner appears to have based her conclusion that the Veteran's tinnitus was not related to his military service on the fact that, at least in part, he had previously denied having tinnitus. However, as noted previously, the Veteran recently testified that until recently, he did not know what "tinnitus" was and that may likely explain why he "denied" having it. 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). Here, the VA examinations conducted in December 2010 and February 2012 are inadequate. Thus, a remand is required for a new examination that includes consideration of the Veteran's credibly reported history of earaches in service and for many years after service and his report of tinnitus, despite his previously "denial" of the condition. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should schedule the Veteran for a VA audio examination to determine the current nature and likely etiology of the Veteran's current hearing loss and tinnitus are related to his military service. All indicated tests and studies should be performed. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed hearing loss is related to service, to include the Veteran's in-service noise exposure and earaches? (b) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed tinnitus is related to service? If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental SOC (SSOC) 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ M. E. LARKIN 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).