Citation Nr: 1323254 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-04 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a sinus disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1976 to September 1980. He thereafter served on various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Army Reserve for a number of years. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Service connection for hearing loss, right ear, for tinnitus, and for a sinus condition was denied therein. The Veteran perfected an appeal as to each of these determinations. In March 2010, the Veteran testified regarding this matter at a hearing before a Decision Review Officer. He testified before the undersigned Veterans Law Judge at a video conference hearing in March 2012. This matter is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." VA will notify the Veteran if further action is required on his part. REMAND Although the Board sincerely regrets the delay remand entails, adjudication of this matter cannot be undertaken as of yet. More development is needed. Such development is necessary to ensure the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Records Reasonable efforts must be made by VA to assist in the procurement of relevant records, as noted above. 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 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). The precise dates of the Veteran's active duty service are known because they are specified on his available DD-214. The precise dates of his ACDUTRA and INACDUTRA periods of service are not known. This is of crucial importance. Service connection basically means that a disability was incurred or aggravated in the line of duty during active service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303(a) (2012). Active service includes active duty, any period of ACTDUTRA during which a disease or injury resulting in disability was incurred or aggravated, and any period of INACTDUTRA during which an injury resulting in disability was incurred or aggravated or an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurred. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). Thus, service connection may be established for disability due to a disease or injury incurred or aggravated during active duty or ACDUTRA but only for disability due to injury (not disease) incurred or aggravated during INACDUTRA. Only service department records can establish dates of ACDUTRA and INACDUTRA periods. Cahall v. Brown, 7 Vet. App. 232 (1994). Requests accordingly must be made for such records, including personnel records and any other records that may contain useful information, so that a list of these dates can be generated. VA has obtained the Veteran's VA treatment records dated into November 2011. They document his ongoing treatment for a variety of health problems to include of his ears and sinuses. It thus is inferred that there may be pertinent VA treatment records dated from November 2011 to present. However, there is no indication that any such records have been requested by VA to date. Requests for them must be made. The Board indeed has constructive notice of VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative must be notified if the aforementioned requests are unsuccessful. With respect to private healthcare providers, treatment records from one identified by the Veteran have been obtained by VA. Yet they are not pertinent. The Veteran has submitted on his own behalf pertinent treatment records from a few private healthcare providers dated from September 1999 to January 2012. He testified that he either could not identify earlier pertinent private treatment records or that they were unavailable. It is inferred, however, that there may be pertinent private treatment records dated from January 2012 to present given that those submitted reveal his ongoing treatment for a variety of health problems to include of his ears and sinuses. To date, VA has not asked the Veteran to either submit any such records or to provide enough information to identify and locate them along with an authorization for their release to VA. This must occur. If the Veteran provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. II. Initial Consideration VA decisions are subject to one review on appeal. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Thus, any pertinent evidence accepted by the Board must be sent to the agency of original jurisdiction (AOJ) for initial review unless this right is waived or the benefit to which the evidence relates may be fully allowed. 38 C.F.R. § 20.1304(c) (2012). It was discovered at the video conference hearing that certain private treatment records regarding his ears and sinuses were not available. This matter was placed in abeyance for 30 days to allow the Veteran time to procure these records. His representative indicated that they would be submitted with a waiver of RO, which in this case is the AOJ, jurisdiction. The records indeed were submitted to the RO by the representative and then forwarded to the Board in April 2012. However, they were not accompanied by a waiver of RO review. As service connection for right ear hearing loss, for tinnitus, and for a sinus disorder cannot be granted at this time, the records must be sent to the RO/AOJ for initial review. III. Interpretation The Board may interpret graphical audiological results into numerical results if able to do so. Savage v. Shinseki, 24 Vet. App. 259 (2011); Kelly v. Brown, 7 Vet. App. 471 (1995). If unable to do so, clarification must be sought or an explanation provided for why such clarification is not needed. Id. Here, the private treatment records submitted by the Veteran include October 2007 and November 2007 audiological results. These results were presented graphically. The Board could attempt interpretation of them into numerical results. Yet there are some instances in which the graphs are not clear. Accordingly, it is possible that only a close approximation of the correct figure would be derived by the Board. Clarification of the correct interpretation by an expert, such as an audiologist, therefore would be useful. To the extent possible, the expert shall further clarify whether or not the results are reliable. IV. Medical Examinations and Opinions When VA provides a medical examination or medical opinion for a service connection issue, whether or not there was an obligation to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. Consideration must be given to the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). The disability present, if any, must be described in sufficient detail during the medical examination. Id. The factual premises underlying a medical opinion must be accurate. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. The Veteran underwent a VA audiological examination in March 2009 and in July 2010. He underwent a VA sinus examination in March 2009. It is reiterated that he submitted pertinent private treatment records in April 2012. He also did the same in July 2011. Everything was not available at the time of the examinations, in other words. Consideration thus was not given to the Veteran's entire medical history at them. Accordingly, new examinations complete with opinions are needed to take this into consideration. This indeed was highlighted at the sinus examination. It was determined that an opinion concerning whether or not a sinus disorder is related to the Veteran's service could not be made without resort to mere speculation based on the then available evidence. It further was determined that another opinion would be needed if additional evidence was procured. Of note is that the new audiological examination must include auditory brainstem response testing. Such was deemed necessary at the July 2010 examination because the Veteran's responses at that time and in March 2009 were too inconsistent to be reliable with respect to right ear hearing loss. There are indications that the Veteran has right ear hearing loss, but the aforementioned testing is necessary to confirm this diagnosis. It also is necessary, assuming there is right ear hearing loss for VA purposes, to confirm its type. Right ear sensorineural hearing loss was referenced at the former VA examination as well as in July and October 2011 VA treatment records, but unknown or undetermined type right ear hearing loss was referenced at the latter examination as well as in a November 2007 private treatment record. The aforementioned testing finally is necessary so that opinions can be provided regarding whether or not right ear hearing loss and tinnitus are related to the Veteran's service. Indeed, no opinion has been rendered regarding right ear hearing loss given the Veteran's inconsistency. It was determined that an opinion regarding tinnitus could not be made without resort to mere speculation for the same reason. To ensure that the factual premises for the new opinions are accurate, the rationales for them must include discussion of pertinent medical principles, with a citation and copy if possible for any literature referenced, as well as the pertinent medical evidence and lay evidence. This includes service treatment records dated during active duty service showing sinusitis or at least possible sinusitis in 1978 and those dated during ACDUTRA and INACDUTRA service reflecting sinusitis in 1995, the Veteran's report of sinusitis in 2007, normal hearing in 1985, 1990, 1993, and 2003 as well as right otitis media in 1995. This also includes numerous private and VA treatment records reflecting the Veteran's treatment for right otitis media, otitis externa, otalgia, and Eustachian tube dysfunction beginning in 2001. It further includes his reports of exposure to loud noise during active duty service from weapons and artillery fire with ear protection and jumping from airplanes with no ear protection as well as during ACDUTRA and INACDUTRA periods of service from weapons and artillery fire and being around generators with ear protection. Finally, it includes his report of first experiencing right ear hearing loss and tinnitus during ACDUTRA and INACDUTRA periods of service sometime in the late 1980's and experiencing sinus problems ever since active duty service when he went through gas chambers. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain the Veteran's service personnel records and any other service department records that may contain useful information regarding the dates of his ACDUTRA and INACDUTRA periods of service from all appropriate sources. Associate all records received with the claims file or "eFolder." 2. Create a list of the Veteran's dates of ACDUTRA and INACDUTRA periods of service (month, day, year, not retirement credits). Place a copy of the list in the claims file or "eFolder." 3. Make as many requests as necessary to obtain any VA treatment records regarding the Veteran dated from November 2011 to present. Associate all records received with the claims file or "eFolder." 4. Ask the Veteran to either submit any pertinent private treatment records regarding him dated from January 2012 to present or provide enough information to identify and locate such records along with an authorization for their release to VA. If he provides the information and authorization, 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 "eFolder." 5. If requested records, whether VA or private, ultimately are not received or are received but are incomplete, notify the Veteran and his representative pursuant to established procedure. Document the claims file or Virtual VA "eFolder" as appropriate in this regard. 6. After completion of all the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding hearing loss in his right ear and tinnitus. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. As part of this review, the examiner shall convert the October 2007 and November 2007 private audiological graphical results into numerical results and indicate to the extent possible whether or not these results are reliable. The examiner then shall interview the Veteran regarding the onset, frequency, duration, and severity of his relevant symptoms. All tests and studies deemed necessary next shall be performed. At a minimum, this shall include auditory brainstem response testing, or an explanation why such recommended testing was not conducted. The examiner thereafter shall opine as to whether or not the Veteran has right ear hearing loss for VA purposes. 38 C.F.R. § 3.385 (2012). Finally, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that right ear hearing loss, if diagnosed, and the Veteran's tinnitus are related to his active duty, ACDUTRA, or INACDUTRA service. This shall include being due to his exposure to loud noise from weapons and artillery fire with ear protection during all service, from jumping from airplanes with no ear protection during active duty service, and from generators with ear protection during ACDUTRA and INACDUTRA periods of service. It also shall include being due to some other injury incurred or aggravated (permanently worsened beyond natural progression) during active duty, ACDUTRA, or INACDUTRA service as well as being due to a disease incurred or aggravated during active duty or ACDUTRA service. A clear and complete rationale (explanation) shall be provided for each opinion. This shall include a discussion of pertinent medical principles, with a citation for and copy if possible of any literature referenced, as well as the pertinent medical and lay evidence. ACDUTRA and INACDUTRA service treatment records documenting that the Veteran's hearing was normal in 1985, 1990, 1993, and 2003 therefore shall be addressed, as shall the record that he had right otitis media in 1995, and the numerous VA and private treatment records concerning his treatment for right otitis media, otitis externa, otalgia, and Eustachian tube dysfunction beginning in 2001. The Veteran's reports of first experiencing right ear hearing loss and tinnitus during ACDUTRA and INACDUTRA periods of service sometime in the late 1980's finally shall be addressed. If an opinion cannot be provided without resort to mere speculation, the rationale shall discuss whether this is because more information is needed, because information that cannot be obtained is needed, because the limits of current medical knowledge have been exhausted, because there are multiple possible etiologies with none more likely than not the cause, or because of some other reason. Each of the above actions shall be documented fully by the examiner in a report. A copy of the report shall be placed in the claims file or "eFolder." 7. Also after completion of all the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding his sinus disorder. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. The examiner then shall interview the Veteran regarding the onset, frequency, duration, and severity of his relevant symptoms. All tests and studies deemed necessary next shall be performed. The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sinus disorder is related to his active duty, ACDUTRA, or INACDUTRA service. This shall include having been incurred or aggravated (permanently worsened beyond natural progression) during active duty or ACDUTRA service. It also shall include being due to an injury incurred or aggravated during active duty, ACDUTRA, or INACDUTRA service. A clear and complete rationale (explanation) shall be provided for each opinion. This shall include a discussion of pertinent medical principles, with a citation for and copy if possible of any literature referenced, as well as the pertinent medical and lay evidence. Service treatment records documenting that the Veteran had sinusitis or at least possible sinusitis in 1978 during active duty service, had sinusitis in 1995 during a period of ACDUTRA or INACDUTRA service, and reported sinusitis in 2007 during such service therefore shall be addressed, as well as the Veteran's reports of experiencing sinus problems ever since active duty service when he went through gas chambers. If an opinion cannot be provided without resort to mere speculation, the rationale shall discuss whether this is because more information is needed, because information that cannot be obtained is needed, because the limits of current medical knowledge have been exhausted, because there are multiple possible etiologies with none more likely than not the cause, or because of some other reason. Each of the above actions shall be documented fully by the examiner in a report. A copy of the report shall be placed in the claims file or "eFolder." 8. Finally, readjudicate the Veteran's entitlement to service connection for right ear hearing loss, for tinnitus, and for a sinus disorder. This shall include initial review of the private treatment records submitted by him in April 2012. If the benefit sought is not granted for one or more of the aforementioned, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument regarding this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).