Citation Nr: 1330264 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-00 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he has bilateral hearing loss and tinnitus due to noise exposure during service. His DD 214 shows that his military occupational specialty was Hercules fire control operator. 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 July 2011 in connection with his claims. Upon examination, the Veteran stated that he had excessive noise exposure during service as a radar operator. He also reported having post-service noise exposure working in a noisy factory for 23 years. The examiner diagnosed the Veteran with bilateral hearing loss and tinnitus and opined that it was not likely that the current hearing loss and tinnitus were a result of military noise exposure because he had normal hearing at separation from service. Additionally, after the Veteran submitted private employment audiograms that he contended showed that an auditory threshold shift existed upon his post-service employment, the VA examiner provided a March 2013 VA addendum opinion that confirmed his previous opinion. In reviewing the opinions, it appears that the VA examiner based his opinion on the lack of medical evidence of hearing loss in service. 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 and tinnitus that may be present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record. The RO/AMC should provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO/AMC should then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. After completion of the foregoing development, the RO/AMC should refer the Veteran's claims file to the July 2011 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any bilateral hearing loss and tinnitus 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, 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 excessive 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 provide an opinion as to whether it is at least as likely as not that the Veteran currently has bilateral hearing loss and/or tinnitus that manifested in service or that is otherwise causally or etiologically related to his military service, including noise exposure. (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 conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss and tinnitus which results from noise exposure generally presents or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were 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 Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. 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).