Citation Nr: 1318481 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-37 665 ) 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 Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran had active service from April 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the application to reopen the previously denied claim for service connection for bilateral hearing loss. The Veteran testified before a Veterans Law Judge in March 2011, and a transcript of that hearing is of record. However, that individual is no longer employed by the Board. The Veteran was notified of this fact and offered the opportunity for a new hearing. In May 2013, the Veteran responded that he did not desire a new hearing. In January 2012, the Board reopened the previously denied claim for service connection for bilateral hearing loss and remanded the merits of the claim for further development. Still further development is needed as to this issue. The issue of entitlement to service connection for hemorrhoids was also remanded for further development in January 2012. However, service connection was granted for hemorrhoids in an August 2012 rating decision, which constitutes a full grant of the benefit sought on appeal. As such, that matter is no longer before the Board. Further, an appeal has not been received as to the initial rating or effective assigned for such disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND This matter was remanded in January 2012 to obtain any VA treatment records dated from January 2011 forward and afford the Veteran a VA examination to determine the nature and etiology of his current hearing loss, namely, whether it was related to his conceded hazardous noise exposure during service. It appears that other identified, pertinent treatment records may remain outstanding. Specifically, in May 2009, the Veteran identified treatment for the ears, earaches, and hearing by several private providers located in Tampa beginning in 1977. No documented efforts have been made to obtain any such records. VA has a duty to make reasonable attempts to obtain any identified records not in the custody of a Federal agency, to include one follow-up request. 38 C.F.R. § 3.159(c)(1) (2012). The Veteran has also identified treatment at the Tampa and Bay Pines VA medical facilities ranging from 1976 through the present. The current evidence includes VA treatment records ranging from December 1976 through September 2012 (including records contained in the Virtual VA electronic storage system). However, there are multiple gaps of several years in treatment, and it does not appear that VA attempted to obtain all pertinent records. VA has a duty to make as many attempts as necessary to obtain identified, outstanding Federal records, including VA records, until a determination is made that such records are unavailable or any further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Further, the Veteran has asserted that his current hearing loss may be related to his head injury or earaches during service. Although there is a VA opinion addressing the effects of his in-service noise exposure, there is no medical opinion of record as to these other possible etiologies. The Veteran is currently service-connected for headaches due to being kicked in the head in November 1974. He was also treated for ear pain or infection and cerumen in the ears several times, although no separation examination is available. See service records dated in December 1974, April 1975, and June 1975. Further, there is an indication of off and on earaches or infection and repeated treatment for impacted or excessive cerumen in the ears after service. See, e.g., July 1978 VA examination; VA treatment records dated in February 1986, May 1987, May 1998, June 2003, October 2007, and February 2009. The Veteran has subjectively complained of decreased hearing since service, and his brother indicated in March 1987 that the Veteran had difficulties hearing after being discharged from service. Under these circumstances, the Board finds that there is an indication that the current hearing loss may be related to incidents or treatment during service, and a VA opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and complete the necessary authorization and release form (VA Form 21-4142) for VA to obtain any outstanding non-VA treatment records concerning his ears or hearing loss. In particular, he should provide a release for records from Dr. Todd Rosenthal or Robert Burchett with the Armenia Clinic from 1977 to 1979, Dr. Anthony Duany from 1978 to 1983, and Dr. Vijay Diwadkar from 1982 to 2001 and from December 2008 forward. Reasonable efforts should be made to obtain the non-VA records for which proper authorization is provided, including at least one follow-up attempt, unless it is reasonably certain that such effort would be futile. 2. Request copies of any outstanding treatment records from the Tampa and Bay Pines VA facilities concerning the Veteran's ears or hearing loss dated from April 1976 to the present. Efforts to obtain VA records must continue until a determination is made that such records do not exist or any further efforts to obtain them would be futile. 3. For each of the above, if any requested records cannot be obtained, inform the Veteran of the missing records, what efforts were made to obtain them, and what additional actions will be taken with regard to his claim. 4. After completing the above, forward the entire claims file to an appropriate VA physician for an opinion as to whether the Veteran's current hearing loss was related to his treatment during service. (The Veteran should be scheduled for a new examination only if one is deemed necessary by the physician.) The examiner should review the entire claims file, including a copy of this remand, and any relevant records in an electronic format. Such review should be noted in the examination report. The examiner should respond to the following questions: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current hearing loss was incurred or aggravated by the treatment for being kicked in the head, earaches or ear infection, and/or cerumen during service? Please comment on the significance, if any, of the off-and-on earaches and treatment for excessive cerumen in the ears after service. (b) If not, is it at least as likely as not that the Veteran's current hearing loss is otherwise related to his military service? The examiner should provide reasons for each opinion offered. All lay and medical evidence of record should be considered, including but not limited to the 2012 VA examination and addendum report, prior VA examinations and audiometric testing, and the reports of ongoing symptoms from the Veteran and his brother. The reports of observable symptoms or prior treatment by the Veteran and other lay witnesses cannot be rejected merely due to an absence of supporting clinical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should explain why a non-speculative opinion cannot be offered, and state whether the inability to provide the needed opinion is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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). _________________________________________________ Mark D. Hindin 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).