Citation Nr: 1324132 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 12-15 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 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 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 Although any additional delay is regrettable, a remand is necessary for further development with respect to the Veteran's claims. I. Compliance with Previous Remand/Adequate VA Opinion In May 2013, the Board remanded this appeal to obtain an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss. As an initial matter, the Board specifically requested an opinion as to whether the Veteran's hearing loss was "aggravated by his bilateral tinnitus." However, the subsequently obtained June 2013 addendum opinion, which addresses whether tinnitus is the cause of his present hearing loss, fails to discuss the question of aggravation. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. In Stegall v. West, 11 Vet. App. 268 (1998) (stating that where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). Because the VA examiner did not offer an opinion as to aggravation, a remand is necessary to ensure compliance with the Board's May 2013 remand directive. Secondly, the Board directed that the examiner "must acknowledge and discuss any lay evidence of a continuity of symptomatology." The Board acknowledges that the June 2013 examiner did attempt to address lay evidence; in this regard, it was noted that the examiner "did not find any lay statements in the c-file that show continuity of symptomatology dating back to military service for hearing loss." Further, the examiner concluded that "[t]here is nothing to support the onset of hearing loss related to his active military service completed 58 years ago." Rather, the examiner relies on the January 2012 notation that the Veteran reported a gradual onset of hearing loss about 10 years ago. However, after carefully reviewing the claims file, including Virtual VA records, the Board finds that there is indeed evidence of record that supports the onset of hearing loss prior this time. Notably, as early as November 2001, it was noted in VA treatment records that the Veteran had decreased hearing in both ears. See November 2001 VA treatment report. The Board also notes that his complaints of decreased hearing were noted subsequently even though the Veteran declined to be referred for an audiology consultation, suggesting that the Veteran did not seek treatment for his hearing loss complaints. See October 2003 VA treatment report. Moreover, the Veteran stated in his November 2011 application that his bilateral hearing loss began March 1952, thereby placing the onset of symptoms directly to service, contrary to the June 2013 examiner's findings. In light of the above, it appears that the June 2013 examiner did not consider this potentially favorable evidence and relied instead upon the perceived absence of medical treatment records until ten years ago in support of the negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). Therefore, the Board finds that the July 2013 opinion is inadequate and that a new opinion must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (a medical opinion based on inaccurate factual premise has no probative value). II. Potentially Relevant Records A review of records on Virtual VA reflects that the Veteran was approved for a fee-basis audiology consultation at Sherard's Hearing Clinic in Scottsbluff, Nebraska, in conjunction with his request for hearing aids. According to a January 2012 VA treatment note, the requested audiogram was completed on December 15, 2011, and it was scanned and available for review in Open Vista Imaging. Although there is a January 2012 VA audiogram of record that was obtained in association with the Veteran's VA examination, unfortunately, this scanned document is not available for the Board's review, either in the paper claims file or Virtual VA. Documents, such as medical records generated by VA or, in this case, fee-basis reports, are considered constructively part of the record before the Board. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam). Inasmuch as this fee-basis audiogram may contain potentially favorable evidence to the Veteran's claim, the audiogram, and any other associated documentation from the fee-basis consultation at Sherard's Hearing Clinic, must be associated with the claims file on remand. Accordingly, the case is REMANDED for the following actions: (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. Obtain and associate with the claims file a copy of the fee-basis audiogram completed on December 15, 2011, and all associated documentation from Sherard's Hearing Clinic. According to a January 2012 VA treatment record, this scanned document is available through Open Vista Imaging. All attempts to secure this evidence must be documented in the claims file and, if consent and authorization is needed from the Veteran to obtain records directly from Sherard's Hearing Clinic, the Veteran should be notified of such. If these fee-basis records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC should obtain an addendum opinion regarding the nature and etiology of the Veteran's hearing loss. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the opinion. All pertinent symptomatology and findings must be reported in detail. If an examination is deemed necessary in rendering the addendum opinion, another audiological evaluation should be conducted. (a) The examiner must render an opinion as to whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the Veteran's current hearing loss disability is related to service. In rendering such an opinion, the examiner is directed to accept as true that the Veteran was exposed to loud noises from M-1 rifles and artillery during basic training and on maneuvers with the infantry division to which he was attached as a cook during service. The examiner must also discuss the Veteran's statements indicating that his hearing loss had its onset in March 1952 and VA treatment records reflecting decreased hearing as early as 2001. (b) The examiner must render an opinion as to whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the Veteran's current hearing loss disability is aggravated by his service-connected tinnitus. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ WAYNE M. BRAEUER 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).