Citation Nr: 1327691 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 12-05 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a heart disorder, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to December 1967. He served in the Republic of Vietnam and had subsequent unverified duty in the United States Marine Corps Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Virtual VA paperless claims file has been reviewed. As will be discussed below, the file does contain additional VA treatment records that have not been considered by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has bilateral hearing loss due to noise exposure during service and a heart disorder due to exposure to herbicides. Initially, the Board notes that the Veteran indicated in a February 1999 VA Form 21-526 that he served in the United States Marine Corps Reserve from May 1981 to May 1983. However, such service has not been verified. Thus, on remand, the RO/AMC should attempt to verify the dates of the appellant's service. In regard to the claim for hearing loss, the Veteran's DD 214 shows that he had active duty service in Vietnam and had a military occupational specialty of machine gunner from January 1964 to December 1967. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2) (2012). The Veteran was afforded a VA audiology examination in April 2010 in connection with his claim for service connection for bilateral hearing loss. Upon examination, the Veteran stated that he was a rifle instructor and had noise exposure while in service. The Veteran also reported having post-service noise exposure working in construction for the previous 20 years. The examiner diagnosed the Veteran with bilateral hearing loss and opined that it was not likely that the Veteran's current hearing loss was a result of military noise exposure because he had normal hearing at enlistment and separation from service, he worked in construction for the previous 20 years, and the onset of his hearing loss began 15 to 20 years ago. Notably, the examiner reasoned that the Veteran's hearing loss was not related to service because he worked construction for the previous 20 years without hearing protection; however, the examiner also noted the Veteran's hearing loss began 15 to 20 years ago. Thus, it is unclear how the Veteran's hearing loss could be due to the post-noise exposure when his disability may have begun prior to that time. Moreover, in reviewing the opinion, it appears that the April 2010 VA examiner based her opinion on the lack of medical evidence of hearing loss in service or for many years thereafter. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any hearing loss that may be present. In regard to the heart disorder, the Veteran was afforded a VA heart examination in September 2010. Following a review of the Veteran's medical history and a physical examination, the examiner stated that the Veteran did not have a diagnosis of ischemic heart disease; however, he did not indicate whether the Veteran may have had any other heart disorder. The Board also notes that ongoing VA treatment records have since been associated with the file that pertain to the Veteran's heart. Finally, following the November 2011 statement of the case, additional VA treatment records were associated with the claims file. This evidence has not been considered by the RO, and no waiver of initial RO consideration is currently of record. See 38 C.F.R. § 1304 (2012). Without a written waiver of initial RO consideration of the additional records, the case must be returned to the agency of original jurisdiction for readjudication. See Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003) (VA regulation allowing the Board to consider additional evidence without remanding case to the agency of original jurisdiction for initial consideration was invalid); see also Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the appellant's unit, and any other appropriate location, to request the appellant's complete service personnel and treatment records from his service in the United States Marine Corps Reserve. The RO/AMC should also request verification of the dates the appellant served in United States Marine Corps Reserve, to include the dates for periods of active duty, active duty for training, and inactive duty for training. The RO/AMC should prepare a summary of such dates. The Veteran has indicated that he served in the Reserve from May 1981 to May 1983. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2) , the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of any action to be taken. 2. The Veteran should be given an opportunity to identify any healthcare provider who treated or evaluated him for hearing loss or a heart disorder. After securing any necessary authorization from him, the RO/AMC should obtain all identified records not already contained in the claims file, to include any outstanding VA treatment records for hearing loss and any heart disorder. 3. After completion of the foregoing, the RO/AMC should refer the Veteran's claims folder to the April 2010 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any bilateral hearing loss that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. The examiner should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison (including the December 1963 enlistment examination), and he or she should provide an interpretation of any audiometric findings contained on a graph. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has contended that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current hearing loss is causally or etiologically related to his military service, including noise exposure. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any heart disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to observable symptomatology and matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify any and all current heart disorders, to include ischemic heart disease. For each diagnosis identified other than ischemic heart disease, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including his herbicide exposure therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ JESSICA J. WILLS 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).