Citation Nr: 1322187 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 11-28 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for hearing loss. ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION 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 Veteran had active service from February 1951 to December 1953. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Diego, California, which denied the benefit sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board notes that the Veteran requested a hearing before a Veterans Law Judge at the RO. A videoconference hearing was scheduled in May 2013, but the Veteran failed to appear. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (which stipulates that, if the appellant fails to appear for a scheduled hearing, the case will be processed as though the request for a hearing had been withdrawn). 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 The Veteran maintains that he currently suffers from bilateral hearing loss as a result of his exposure to acoustic trauma while serving as lieutenant and Air Defense Artillery Unit Commander in the military. He contends that his current hearing problems began in service and have continued since this time. VA attempted to obtain the Veteran's service treatment records from the National Personnel Records Center (NPRC), but was unable to secure these records. An April 2009 Request for Information under the Personnel Information Exchange System (PIES) Code M01 returned no records. The above-referenced response from the NPRC indicated that there were no service treatment records found due to fire-related causes, and asked whether the Veteran had received any treatment while in service. The instructions held that, if such information were provided, future requests could be addressed to PIES code M05. In letters dated in March, April and May 2009, the RO informed the Veteran that it was experiencing difficulty in obtaining his service treatment records. The RO explained that, due to the 1973 fire at the National Archives and Records Administration, the Veteran's service treatment records may have been destroyed. To help assist the Veteran in reconstructing his medical records, the RO asked the Veteran to complete a VA NA Form 13055, identifying the names of the organizations and units in which he served during his period of active duty, as well as his dates of treatment. The May 2009 letter also requested that the Veteran provide any original or photocopies of service treatment records that may be in his possession. It was specifically requested that the Veteran provide at least the month and year of any treatment in order to make a meaningful search for records. Providing only the year of treatment would not be sufficient due to the volume of records contained at the National Archives. After a Formal Finding on the Unavailability of Service/Federal Records was issued in October 2009, the Veteran partially completed the NA Form 13055 in November 2009, and noted that he had been treated for hearing problems in 1953 while stationed with the Battery 'A' 7th A.W. Battalion in Manheim, Germany. In an attached statement, the Veteran explained that he sought medical attention for diminished hearing while stationed at his base camp in Manheim, Germany, and was thereafter informed that it was a temporary condition. In a January 2010 Addendum to Formal Finding on the Unavailability of Service/Federal Records, it was noted that the NA Form 13055 received from the Veteran lacked sufficient information to allow for any meaningful search of military medical records. The memorandum reiterated that all procedures to obtain records pertaining to the Veteran had been correctly followed, all efforts to obtain the needed information had been exhausted, and any further attempts were futile. No requests have been made for the Veteran's personnel records. The Board notes that personnel records may be stored in a different location than that of service treatment records. The Board also notes that the Veteran's personnel records may contain information regarding his duties in service, either during or after basic training, wherein he may have been exposed to acoustic trauma. Moreover, the Veteran's personnel records may contain information regarding his unit or organization at the time of his injuries. If so, unit histories, including sick call and morning reports, may be obtained. In cases where the Veteran's service treatment records are presumed destroyed, VA not only has a heightened duty to assist the Veteran in developing facts pertaining to his claim, but they also have an obligation to search for alternative treatment records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). As such, the Board concludes that all efforts to reconstruct the Veteran's service treatment records have not been "reasonably exhausted." See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the [appellant] substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). If, on remand, it is determined that service records are nonexistent or unattainable, the Veteran must be notified of that determination in compliance with 38 C.F.R. § 3.159(e). The Veteran was afforded a VA audiological examination in June 2009, at which time he provided his military history and stated that he served as a second lieutenant in an anti-aircraft platoon in service. The Veteran explained that he was responsible for firing 90 millimeter (mm) guns and 50 caliber machine guns from the ground towards aircraft while in training. He further reported that no hearing protection was used during this time as none were issued to him. According to the Veteran, his hearing acuity has steadily deteriorated over the years. The audiological evaluation revealed right ear auditory thresholds in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz as 50, 20, 30, 55 and 65. For the left ear, auditory thresholds in the same frequencies were recorded 45, 35, 25, 50 and 55. Based on her evaluation of the Veteran, the VA audiologist diagnosed him with bilateral sensorineural hearing loss. In the September 2009 addendum opinion, the same VA audiologist reviewed the Veteran's claims file, and acknowledged findings of hearing loss in a private audiogram issued in July 2008, and at the June 2009 VA examination. According to the VA audiologist, in light of the fact that the Veteran's service treatment records were unavailable for review due to fire damage, and in the absence of any records that would be considered while the Veteran was on active duty or within a reasonable time post-active duty, she could not resolve the contention that his hearing loss is related to military noise exposure without resorting to mere speculation. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Unites States Court of Appeals for Veterans Claims (Court) noted that an examiner's conclusion that an etiology opinion is not possible without resorting to speculation is a medical conclusion that must be "based on sufficient facts or data," and the opinion "must support its conclusion with an analysis that the Board can consider and weigh" to be adequate. While the June 2009/September 2009 VA examiner provided an explanation as to why she could not resolve the issue without resorting to speculation, the Board is left to question whether the examiner considered all the relevant evidence prior to reaching her conclusion. In particular, since the date of his VA examination, the Veteran has submitted additional evidence, in the form of copies of his DD 214 and his military discharge certificate, both of which support his assertions regarding his military occupational specialty in service. Specifically, the discharge certificate reflects that the Veteran served as a Second Lieutenant of an Artillery unit in the United States Army. Based on this additional information, the RO conceded the Veteran's exposure to acoustic trauma in service. See August 2011 Statement of the Case (SOC). The Board agrees with this determination. However, this additional evidence was not considered by the examiner at the time of the VA examination. Indeed, the VA examiner's opinion relied on the fact that there were no available service treatment records to substantiate the Veteran's assertions of noise exposure in service. Based on the evidence of record as it currently stands, the occurrence of an in-service injury has been established. This was not the case at the time the September 2009 opinion was rendered. As such, the Board finds that the claims file should be returned to the June 2009/September 2009 VA examiner for an addendum that specifically takes into consideration the more recent evidence of record, to include the fact that the Veteran's in-service noise exposure has been conceded. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). Accordingly, the case is REMANDED for the following action: (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. Contact the Veteran and provide him with another NA Form 13055 and ask that he provide a more specific time frame (month and year) for when he sought medical attention for impaired hearing while assigned to Battery 'A' 7th A.W. Battalion in Manheim, Germany. The Veteran should also be asked to identify the name(s) of the military hospital, dispensary or medical facility where he sought medical treatment. 2. Request from the NPRC, or other appropriate repository, the following: a. The Veteran's entire Military Personnel File (OMPF), including basic and extended service personnel records, administrative remarks, evaluations and orders. b. Any sick/morning reports pertaining to the Veteran's unit mentioning incidents involving the Veteran in 1953 while he was assigned to Battery 'A' 7th A.W. Battalion in Manheim, Germany. c. Any hospital/outpatient clinical records relating to treatment the Veteran received during the designated time period provided by the Veteran while he was assigned to Battery 'A' 7th A.W. Battalion in Manheim, Germany. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2012). 3. Once these records have been obtained and associated with the claims file, refer the file to the examiner who conducted the 2009 examination. The claims folder and a copy of this remand must be made available to, and reviewed by, the examiner. Following a review of the record, the examiner should then express an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any hearing loss diagnosed anytime during the pendency of the appeal, had its clinical onset in service or is otherwise related to the Veteran's military service, to include the Veteran's conceded in-service noise exposure. In answering this question, the examiner should also address the Veteran's assertions that he has experienced hearing problems since military service, and should specifically set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. A complete rationale for any opinion should be included. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If the examiner who conducted the 2009 examination is no longer available, the file should be referred to a clinician with sufficient expertise to address the questions set out above. If further examination of the Veteran is required, this should be scheduled.) 4. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).