Citation Nr: 1329222 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-14 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant, Appellant's wife ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to December 1975. The Veteran also testified to service in the United States Army Reserves and the National Guard from June 1982 to January 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. 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 Board has determined that further development is needed in the Veteran's claims for service connection for bilateral hearing loss and service connection for tinnitus. The Veteran had active duty in the United States Air Force from March 1972 to December 1975 and also testified to service in the United States Army Reserves for a short period starting in June, 1982 and he then joined the Army National Guard where he served until January 2004. Although portions of the service treatment records from active duty in the Air Force have been associated with the file, these records do not appear to be complete. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency unless VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Therefore, a remand is necessary so that the complete treatment records from his Air Force active duty may be associated with the file. Service treatment and personnel records from the Veteran's periods of service in the Reserves and with the National Guard are also necessary for determination of the Veteran's claims. Active military service includes any period of active duty for training (ACDUTRA) in a Reserve component of the U.S. Armed Forces during which the individual was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Active military also includes any period of inactive duty training (INACDUTRA) in a Reserve component of the U.S. Armed Forces during which the individual was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. Active military service also includes any period of active duty for training in the National Guard of any state performed under 32 U.S.C. §§ 316 , 502, 503, 504, or 505, in which the individual was disabled from a disease or injury incurred in the line of duty. 38 C.F.R. § 3.6. The Veteran contends that it was his service in the National Guard and Reserves that resulted in his hearing loss and tinnitus. For instance, the Veteran attributes the onset of tinnitus to training as a door gunner firing 50 caliber guns from helicopters. Therefore, the Board has determined that the Veteran's personnel files from the Reserves and National Guard should be associated with the file as there is a reasonable possibility that the records could help substantiate the claim. The personnel records of the Veteran would demonstrate various periods of ACDUTRA or INACDUTRA. In addition, the Veteran testified that he has been certified as a civilian pilot and was required by the Federal Aviation Agency (FAA) to have a physical examination before certification or licensure. It is not clear whether the Veteran has undergone subsequent examinations for civilian pilot purposes, but all such records are relevant and raise a reasonable possibility that they may help substantiate his claims. In addition, beside service as a pilot in both the National Guard and the Reserves, the Veteran also worked for the FAA, including duties as a pilot. Therefore, any treatment or health records of the Veteran as an employee of the FAA should be obtained and associated with the file. The Veteran was provided a VA examination in May 2009. In the report, the VA examiner commented on the relationship between the Veteran's civilian occupation and its effect upon the Veteran's hearing loss and tinnitus. The Veteran testified that his exposure to noise in his civilian occupation with the FAA was not as severe as indicated by the VA examiner and offered further details regarding his noise exposure both in active duty with the United States Air Force and with the United States Army Reserves and National Guard. The Board has therefore determined that another VA examination should be provided for the Veteran and the examiner should provide an opinion based upon the additional evidence of the Veteran's noise exposure and the records development discussed above. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all private health care providers who may possess additional records pertinent to his claims, including identification and contact information of the physician who examined the Veteran for his initial certification or licensure as a civilian pilot. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran that he may submit any such records in his possession. 2. Request the Veteran's personnel and treatment records from the National Personnel Records Center and the appropriate service department for the Veteran's active service from March 1972 to December 1975. 3. Ask the proper custodians for the Veteran's complete service personnel and treatment records for all Army Reserve and National Guard service from June 1982 to January 2004, including documentation to determine the exact dates of the Veteran's active duty for training (ACDUTRA) and inactive training (INACDUTRA). Also, request copies of any medical records of the Veteran that may still be with the Reserve or National Guard unit. If the requested records do not exist, or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. Request the records of FAA, pertaining to audiological testing of the Veteran for purposes of certification, recertification, or licensure as a civilian pilot. In addition, the Veteran should either submit or authorize VA to obtain on his behalf, health records from FAA as his employer. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. After the record development is completed, afford the Veteran a VA audiology examination for the claims of service connection for bilateral hearing loss and service connection for tinnitus. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has current a bilateral hearing loss disability, and, if so, whether it is at least as likely as not (50 percent probability or more) that any bilateral hearing loss disability had its onset during service or is causally or etiologically related to any period(s) of active duty service or ACDUTRA, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If so, the examiner is asked to identify which period of ACDUTRA and to identify whether the etiology is a disease or injury. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus is causally related to any period(s) of active duty service or ACDUTRA, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If so, the examiner is asked to identify which period of ACDUTRA and to identify whether the etiology is a disease or injury. The VA examiner is asked to comment on whether there were any clinically significant threshold shifts in the Veteran's hearing ability during active service from March 1972 to December 1975, or during ACDUTRA, comparing the results of audiology testing on the entrance and separation examinations, including as it relates to the Veteran's history of noise exposure. In formulating an opinion, the VA examiner is asked to determine the effect of the noise exposure in service and in his service in the Reserves and National Guard as described by the Veteran. In formulating the opinion, the VA examiner is also asked to consider that the Veteran as a lay person is competent to describe symptoms at the time which supports a later diagnosis by a medical professional, and to provide lay evidence concerning continuity of symptoms after service, regardless of the lack of contemporaneous medical evidence. If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge, and if warranted, to identify any additional development of the evidence which would facilitate rendering such opinion. 5. After the development requested is completed, readjudicate the claims for service connection for bilateral hearing loss and service connection for tinnitus. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant 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). _________________________________________________ U. R. Powell 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).