Citation Nr: 1320424 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 11-14 642 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1965. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO denied service connection for hearing loss and tinnitus. In January 2011, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in May 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2011. Though the Veteran requested a Board videoconference hearing on his May 2011 VA Form 9, he later withdrew this request in correspondence dated December 2011. In June 2013, a Board Deputy Vice Chairman advanced the Veteran's claim on the docket, based on his serious illness. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. With respect to the Veteran's hearing loss claim, the Board finds that the evidence of record is insufficient to decide the claim, such that an addendum opinion is required. In this respect, service treatment records (STRs) include audiometric testing, conducted in August 1963, at service entrance, showing the following results: (Service department records dated October 31, 1967, or earlier, are presumed to report audiometric data in ASA units-the following data has been converted to ISO (ANSI) units with the raw ASA data included in parenthesis.) HERTZ 500 1000 2000 3000 4000 RIGHT 15 (0) 20 (10) 20 (10) -- 5 (0) LEFT 25 (10) 0 (-10) 5 (-5) -- 20 (15) A February 1964 Hearing Conservation Data report indicated that the Veteran's primary work area was on the flight line, that his primary source of noise exposure came from jets, and that ear protection was worn. A box indicating "Time in Current Job" was marked with a slash. Audiometric testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (-5) 0 (-10) 0 (-10) 5 (-5) 0 (-5) LEFT 10 (-5) 0 (-10) 0 (-10) 5 (-5) 0 (-5) The remainder of the Veteran's STRs are silent for any hearing-related complaints or reports. As the two in-service audiograms indicate a slight improvement in the Veteran's hearing, but suggest that he was newly assigned to the flight line at the time the February 1964 audiogram testing was conducted, his service personnel records should be obtained to see if there is more information regarding the Veteran's in-service duties and assignments. Post-service, the first documented treatment for hearing loss occurred in September 2009, and in October 2010, the Veteran underwent a VA examination. The Veteran reported to the examiner that he utilized hearing protection in service when in the presence of loud noise levels, that he had a post-service history of recreational loud noise exposure while quail hunting and riding motorcycles without the use of hearing protection, but that he had no post-service occupational noise exposure. He added that he first noticed hearing loss approximately 15 years prior. Audiological testing results for pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 70 75 LEFT 50 55 65 100 110 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 36 percent in the left ear. The examiner stating the following: Veteran's entrance evaluation dated 8/13/1963 and audiologic evaluation dated 2/18/1964 revealed hearing within normal limits bilaterally for the frequency range 500 through 4000 Hz...No separation evaluation was performed at Veteran's time of discharge from service therefore it is unknown as to what his hearing sensitivity was at separation from the service. In addition, there seems to be no audiometric data available for 46 years since military discharge, making it impossible to determine onset of hearing loss. Therefore, I am unable to tell whether or not [the Veteran's] hearing loss is related to military noise exposure without resorting to mere speculation. The Board finds that the above-noted opinion is inadequate to resolve the question of the etiology of the Veteran's hearing loss. Although the examiner considered objective medical evidence in addressing the etiology of the Veteran's hearing loss, it does not appear that the examiner considered the significance of the Veteran's in-service noise exposure, nor did she comment with specificity on his reported post-service noise exposure and onset of his hearing loss symptomatology, which he is competent to assert. See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002). The Board points out that the United State Court of Appeals for Veterans Claims (Court) has determined that a VA examiner cannot use speculation "as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." Jones v. Shinseki, 23 Vet. App. 382 (2010). Also, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran submitted a favorable opinion from a VA medical director and assistant administrator in January 2011, which noted his in-service noise exposure, stating that such can cause hearing acoustic trauma leading to hearing loss and tinnitus. The letter further stated that the Veteran's high frequency hearing loss was consistent with the noise exposure that the Veteran experienced on active duty, such that it was more likely than not that his hearing loss and tinnitus is related to service. However, as this opinion does not provide a full rationale which discusses the significance of Veteran's in-service and post-service medical history, it is not deemed adequate for adjudication purposes. Accordingly, because the record still does not contain an adequate medical opinion to resolve the Veteran's hearing loss claim, the Board finds that further opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by fully-stated rationale, is needed to resolve the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board further notes that, because the actions noted below may yield additional evidence that might, conceivably, bear on the prior examiner's opinion regarding tinnitus, she should render an addendum opinion with respect to that disability, as well. The claims file indicates that the Veteran is in receipt of Social Security Disability Insurance (SSDI) benefits, the basis of which is unspecified. As the SSDI records may be relevant to the Veteran's claims, VA has a duty to make reasonable efforts to obtain these records. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that if there is a reasonable possibility that Social Security records are relevant to a claim, VA is required to assist the claimant in obtaining the identified records). While these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, in addition to seeking the aforementioned SSDI records, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent VA and/or private treatment records. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication the claims should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since his discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Contact the National Personnel Records Center, and/or any other appropriate facility (ies), to obtain the Veteran's service personnel records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Obtain from the Social Security Administration a copy of the decision pertinent to the Veteran's claim for Social Security benefits, as well as the medical records relied upon concerning that claim. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 5. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After any additional records have been associated with the claims file, return to the entire claims file, to include a complete copy of the REMAND to the October 2010 VA examiner, J.W.H., for addendum opinions. With respect to each hearing and tinnitus, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service. In rendering each requested opinion, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the January 2011 favorable opinion, and the Veteran's assertions. The Board points out that more definitive etiology opinion-particularly, as regards hearing loss-is sought. However, in the event that the examiner determines that she cannot provide any requested opinion without resorting to mere speculation, complete, clearly-stated rationale for that conclusion, which reflects full consideration of all pertinent evidence, must be provided. The examiner should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 9. If any benefit sought on appeal remains denied, in whole or in part, furnish to the Veteran and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).