Citation Nr: 1321090 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 13-05 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Service connection for hearing loss and for tinnitus was denied therein. The Veteran appealed these determinations. Based on review of the Veteran's claims file as well as his Virtual VA "eFolder," this matter is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note that this case has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). REMAND Although the Board sincerely regrets the delay of a remand, adjudication of this matter cannot be undertaken as of yet. More development is needed to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to notify about his claim and a duty to assist him in obtaining evidence to substantiate it. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that an initial evaluation and an effective date will be assigned if service connection is granted for a disability also must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, no notification letter is contained within the claims file or "eFolder." A September 2010 statement from the Veteran does reference a June 2010 letter from VA. Yet this letter is missing. It therefore cannot be determined whether it was a notification letter and, if so, whether it was complete. As such, a complete notification letter must be provided to the Veteran at this time. This requires remand. VA's duty to assist is heightened when records have been destroyed while in government possession. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005); Milostan v. Brown, 4 Vet. App. 250 (1993); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No service treatment records regarding the Veteran have been obtained. All indications are that they were destroyed in a fire while in the possession of the National Personnel Records Center, a government agency. Efforts to replicate them, or at least pertinent portions, have been unsuccessful. In light of this situation, greater than normal efforts must be made to assist the Veteran in obtaining other evidence. Reasonable efforts normally must be made by VA to assist the claimant in the procurement of pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of non-Federal (private) records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Here, the Veteran has submitted private treatment records. They are not pertinent, however. The Veteran has not mentioned any pertinent private treatment records. This usually means no further development in that regard, but here he must be requested to indicate whether or not such records exist on remand. If so, the established procedure set forth above must be followed in attempting to obtain them. VA treatment records have been submitted by the Veteran and obtained by VA. They date from June 2010 to September 2010 and appear to show ongoing audiological treatment. This suggests that there may be outstanding pertinent VA treatment records dated prior to the June 2010 record or following the September 2010 record. VA treatment records further plausibly could be expected to be among the evidence before the Board, and thus the Board has constructive notice of the existence of those records. Bell v. Derwinski, 2 Vet. App. 611 (1992). Requests for them accordingly must be made on remand, with notification to the Veteran if the requests are unsuccessful. If VA provides a medical opinion for a service connection claim, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. It therefore must be based upon consideration of the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). That helps ensure that the factual premises underlying a medical opinion will be accurate, which is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. The Veteran underwent a VA medical examination in September 2010. He reported exposure to loud noise during service from weapons and artillery fire while not wearing ear protection. He also reported occasional post service exposure to loud noise from weapons fire during hunting while not wearing ear protection and from being called to the floor of the steel mill where he worked without ear protection for 20 out of 30 years. Hearing loss and tinnitus for about 30 years, since he was in his 40's, finally was reported by the Veteran. Bilateral hearing loss severe enough to be considered a disability by VA and tinnitus were diagnosed following review of the claims file, further interview of him, and assessment of him. 38 C.F.R. § 3.385 (2012). The examiner, an audiologist, determined that an opinion regarding whether it is at least as likely as not that the Veteran's hearing loss and tinnitus are related to his service could not be made without resort to mere speculation. Noted in this regard was that his service treatment records are not available as well as that he had post service exposure to loud noise at work. An examiner's conclusion that an opinion is not possible without resort to speculation is a medical conclusion just as much as a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). However, this conclusion cannot be relied upon unless it was made after consideration of "all procurable and assembled data" and the basis for it is provided or otherwise is apparent. Id. A partial basis, the lack of service treatment records which cannot be obtained, was provided. Another partial basis, multiple possible etiologies of loud noise exposure during service and post service, can be inferred. Yet it is unclear whether or not the evidence in its entirety was considered, notwithstanding the indication that the claims file was reviewed, because the rationale provided was not fully articulated. There was no discussion of the Veteran's report that his hearing loss and tinnitus began about 30 years prior when he was in his 40's. His earlier September 2010 statement that the ringing in his ears developed during service was not discussed or even acknowledged. Neither was a June 2010 VA treatment record documenting his report of post service exposure to loud noise for 5 years due to working for the Sheriff's department. Of further note is that the Veteran reported that this ringing began shortly after service in February 2013, following the examination. Arrangements thus must be made for another VA examination complete with medical opinion on remand. To ensure the accuracy of the factual premise underlying the opinion given the discrepancies of record, the examiner must ask the Veteran to clarify the onset of his hearing loss and tinnitus. The examiner shall presume he was exposed to loud noise during service. Such is conceded, despite the lack of service treatment records, because his DD214 confirms he was a field artillery crewman. Given the above, a REMAND is directed for the following (expedited handling is required because this matter has been advanced on the Board's docket): 1. Send the Veteran and his representative a complete notification letter concerning this matter. Include a copy of the letter in the claims file or "eFolder." 2. Ask the Veteran if any private treatment records regarding his ears dated from his July 1959 separation to present exist. If he indicates that they do, request that he either submit them or provide enough information to identify and locate them along with an authorization for their release to VA. If reauthorization is provided, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the claims file or Virtual VA "eFolder." 3. Make as many requests as necessary to obtain all VA treatment records regarding the Veteran dated prior to the available June 2010 record and following the available September 2010 record. Associate all records received with the claims file or Virtual VA "eFolder." 4. If requested records, whether VA or private, ultimately are not received or are received but are incomplete, notify the Veteran and his representative. Document the claims file or Virtual VA "eFolder" as appropriate regarding this paragraph. 5. After completing the above, arrange for the Veteran to undergo an appropriate VA medical examination regarding his hearing loss and tinnitus. The claims file and pertinent "eFolder" documents shall be reviewed by the examiner. The examiner also shall interview the Veteran about his symptoms, with emphasis on onset, and their impact on his activities of daily living and employment. All tests or studies deemed necessary shall be performed. The examiner finally shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss and that his tinnitus: (a) is related to his loud noise exposure during service or (b) manifested within his first post-service year (by July 1960). A complete rationale or explanation shall be provided for each opinion. This includes a discussion of pertinent medical principles, with a citation for or the attachment of any literature referenced, as well as the pertinent medical evidence and non-medical or lay evidence. Continuity of symptoms specifically must be discussed. If an opinion cannot be provided without resort to mere speculation, a complete rationale or explanation for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is because more information is needed, because information that cannot be obtained is needed, because the limits of current medical knowledge have been exhausted, or because of some other reason. Each of the above actions shall be documented fully in a report. A copy of such report shall be placed in the claims file or "eFolder." 6. Lastly, readjudicate the Veteran's entitlement to service connection for hearing loss and for tinnitus. If this benefit is not granted for one or both disabilities, furnish him and his representative with a supplemental statement of the case (SSOC). Allow them the requisite time period to respond. A copy of the SSOC shall be placed in the Veteran's claims file or Virtual VA "eFolder." No action is required of the Veteran until he is notified by the RO. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit(s) sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issues the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is reiterated that this matter must be afforded expeditious treatment because it has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). Further, the law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This remand is a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).