Citation Nr: 1318962 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 07-33 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had a period of unverified active service from March 2 to September 19, 1964, with verified active duty for training from September 19, 1964 to January 18, 1965. Additionally noted were unverified periods of active duty extending from August 14 to August 29, 1965; June 18 to September 2, 1966; August 12 to August 26, 1967; August 10 to August 24, 1968; and July 25 to August 9, 1969. Finally, the Veteran had an additional period of verified active duty service from July 25, 2002 to March 5, 2003. This case was previously before the Board in July 2011, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. As noted in the July 2011 remand, the issue of entitlement to service connection for bilateral tinnitus has been raised by the record, but remains unadjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. For reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The July 2011 remand requested that the RO/AMC "verify each and every type of service the Veteran performed, whether it was active duty, active duty for training, or inactive duty for training." However, a review of the record would appear to indicate that such action has not yet been completed. While the record includes the appellant's reserve retirement point summary, that chart does not definitively define each term of active duty, active duty for training, or inactive duty for training within each given year. Additionally, the Board requested was that, following a VA audiometric examination, the examiner opine whether it was clearly and unmistakably evident that any hearing loss present in 2002 preexisted the Veteran's service which began in July 2002. While a September 2011 VA audiometric examiner indicated that "no new evidence has been presented, and that hearing loss was therefore less likely than not related to the Veteran's military exposure," pertinent evidence of record is to the effect that, at the time of the rendering of that opinion, the appellant's service treatment records had not yet been obtained. Therefore, they were not available for the examiner's review. Under the circumstances, it was determined that the Veteran's entire claims folder should be returned to the VA audiologist who had conducted the September 2011 audiometric examination, with a request that he provide an addendum opinion regarding the exact nature and etiology of the Veteran's hearing loss. Pertinent evidence of record shows that the Veteran's claims folder was not, in fact, returned to that examiner but, rather, was forwarded to a VA physician for the aforementioned opinion. Significantly, following a review of the entire claims folder, that physician, in November 2012, opined that the Veteran's bilateral sensorineural hearing loss was "less likely than not" incurred in, caused by, or aggravated by a claimed inservice injury, event or illness. However, a review of the record would appear to indicate that the opinion in question was based, at least in part, upon erroneous and/or incomplete information. More specifically, in rendering his opinion, the examiner made no mention whatsoever of a September 13, 2002 inservice audiometric examination, at which time it was noted that the Veteran was an "activated reservist," who had retired after 28 years working in the steel industry where, it must be assumed, the Veteran was exposed to noise at hazardous levels on a regular basis. Moreover, while during the course of his review, the November 2012 examiner made reference to an audiology clinic note dated on July 10, 2002 (just prior to the Veteran's entry upon his final period of active service), that note, in actuality, represented a report of audiometric brain stem evoked response testing conducted on October 7, 2002, during the Veteran's final period of active service. Additionally, while according to the examiner, on February 9, 2003, the Veteran underwent an audiometric examination culminating in a comment of "noise exposed," that audiometric examination was actually conducted on September 3, 2002, less than two months following the Veteran's entry upon his final period of active service. Finally, while according to the examiner, on April 31, 2002, the Veteran underwent an audiometric examination resulting in a diagnosis of bilateral sensorineural hearing loss, somewhat worse in the left ear, that examination is not at this time a part of the Veteran's claims folder. Based on the aforementioned, the Board is of the opinion that additional development of the evidence is required prior to a final adjudication of the Veteran's claim. Accordingly, the case is once again REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, any appropriate National Guard Bureau, as well as the Defense Finance and Accounting Service, with a request that they verify the Veteran's each and every period of service, to include a classification whether the service was active duty, active duty for training, and inactive duty for training. If it is necessary to contact the Defense Finance and Accounting Service to secure this information, that agency must review the various pay accounts to determine the account from which the Veteran was paid for each period of service. (i.e., What service periods were paid from an account designated to pay for inactive duty service? What service periods were paid from an account designated to pay for active duty training service? Etc.) If the AMC/RO cannot locate these Federal records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. The RO/AMC should contact the appropriate service medical facility and/or record storage facility, with a request that they provide a copy of the April 31, 2002 audiometric examination utilized by the VA examiner in the course of rendering his November 2012 opinion. Once obtained, that record should be made a part of the Veteran's claims folder. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Any pertinent VA or any other inpatient or outpatient treatment records, subsequent to November 2012, the date of the aforementioned VA medical opinion, must be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot locate the Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. The Veteran's entire claims folder, to include access to his Virtual VA eFile, must then be furnished to the same VA examiner who provided the aforementioned November 2012 opinion. Following a review of the Veteran's claims folder, and, in particular, information contained in the body of this REMAND, the examiner must provide a supplementary opinion addressing the exact nature and etiology of the Veteran's current hearing loss. More specifically, the examiner should opine as to whether the Veteran's current hearing loss at least as likely as not had its origin during, or is in some way the result of, his period or periods of active military service. Should it be determined that the Veteran's current hearing loss did not have its origin during his period or periods of active military service, the examiner must opine whether any current hearing loss clearly and unmistakably preexisted the Veteran's period(s) of active military service. Should it be determined that the Veteran's hearing loss did, in fact, preexist his period or periods of active military service, the examiner must additionally opine as to whether there is clear and unmistakable evidence either that (1) the Veteran's hearing loss did not increase in severity during service, or (2) that any increase was due to the natural progress of the disease. A fully reasoned rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file and all pertinent Virtual VA records had been reviewed. 5. The RO/AMC should then review the aforementioned report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 6. The RO/AMC must then readjudicate the Veteran's claim of entitlement to service connection for bilateral hearing loss. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case which contains notice of all relevant action taken on the claim for benefits since November 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ DEREK R. BROWN 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).