Citation Nr: 1330989 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-06 285 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1963. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO denied 5 separate claims, to include hearing loss and tinnitus. In August 2009, the Veteran filed a notice of disagreement (NOD) limited to the hearing loss and tinnitus issues. A statement of the case (SOC) was issued in November 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later than month. In July 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A copy of the hearing transcript is associated with the Virtual VA electronic records storage system. A review of Virtual VA does not disclose any additional documents other than the July 2013 hearing transcript which are not associated with paper claims file,. For reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran's testimony and statements of record reflect that there may be additional, relevant VA treatment records which have not been associated with the claims file. He reports undergoing left ear surgery in the late 1970's performed by either a VA physician or another physician associated with Hardin Community Hospital. See VA clinic record dated October 2008; July 2013 Board hearing transcript. The Veteran's claims file reflects a reported history of inpatient and outpatient treatment at the Louisville VA Medical Center (VAMC) and Lexington VA Hospital (VAH) dating back to the 1980's as well as subsequent treatment at the VAMC in Hines, Illinois. See VA Form 21-526 received November 1983; VA examination report dated March 1985. The VA records mentioned above are not associated with the claims file. Hence, the RO should obtain from the above-noted facilities all outstanding, pertinent records of evaluation/and or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The Veteran also reports having filed a claim for disability benefits with the Social Security Administration. See VA Form 21-526 received in November 1983. As these records could potentially be relevant to the claims on appeal, the RO should also attempt to obtain these records, if existing, pursuant to the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, the Veteran has identified potentially relevant records from Dr. Hall at Hardin Community Hospital in Elizabethtown, Kentucky in the late 1970s. See VA clinic record dated October 2008; July 2013 Board hearing transcript. The RO should assist the Veteran in obtaining these records, if still existing. Therefore, on remand, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records, to particularly include records of treatment from Dr. Hines (referenced above). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. Finally, after associating with the claims file all outstanding, pertinent records, the RO should arrange for the Veteran to undergo further examination in connection with these claims VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service[or service-connected disability, but the record does not contain sufficient medical evidence to decide the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's August 2011 VA audiology examination was conducted without the benefit of all relevant records. Additionally, given the Veteran's reported history of left ear surgery and abnormal acoustic reflexes found on VA examination in August 2011, the VA examiner should discuss the significance, if any, of the Veteran's treatment for a retracted left tympanic membrane in April 1963. The Board further notes that a VA Training Letter 10-02 issued in March 2010 stated that a "notch" of decreased hearing (seen generally at frequencies of 3000, 4000, or 6000 Hz) may be indicative of noise-induced hearing loss. Accordingly, the Veteran should be afforded additional VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus disabilities which discusses the type(s) of hearing loss present (conductive and/or sensorineural), the significance of the Veteran's treatment for a retracted left tympanic membrane in April 1963, and whether or not a "notch" indicating noise-induced hearing loss was present in the review of the in-service audiograms. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims n appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Clarify with the Veteran the approximate date(s) that he began receiving treatment at the Louisville VAMC, the Lexington VAH and the Hines VAMC. Upon clarification, obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the Louisville VAMC, the Lexington VAH, and the Hines VAMC from the beginning date(s) of treatment to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities, and specifically request all hardcopy and electronic records. If a negative response is received, ensure that the requested records have not been transferred to another federal facility. See VHA Records Control Schedule 10-1 at XLIII-3 (stating that VA treatment records are deemed inactive three years after the last episode of care, at which time they are retired to a selected records storage facility for 72 years). All records and/or responses received should be associated with the claims file. 2. Obtain all medical and legal documents pertaining to the Veteran's application for SSA disability benefits in the 1980s. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records, to particularly include records of treatment from Dr. Hall at Hardin Community Hospital in Elizabethtown, Kentucky in the late 1970s. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. Assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an Ear, Nose and Throat (/ENT) physician or audiologist, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include audiometry and speech discrimination testing) should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on the results of audiometric testing, the examiner should clarify whether hearing loss in the right and/or left ear is conductive and/or sensorineural in nature. The examiner should also indicate whether the Veteran has tinnitus. Then, with respect to each such diagnosed and type of disability (conductive and/or sensorineural), the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability is the result of injury or disease incurred or aggravated in service, to include in-service noise exposure associated with his military service. In providing the requested opinion, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to particularly include all in- and post-service medical records, as well as all lay assertions concerning the Veteran's in- and post-service noise exposure, and as to onset and continuity of symptoms. The examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally present or develop in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other noise. The examiner should provide comment as to whether or not a "notch" (see Training letter 10-02) indicating noise-induced hearing loss was present in the review of the in-service audiograms, and whether the Veteran's treatment for a retracted left tympanic membrane in April 1963 holds any significance to his current hearing loss disability. All testing results, along with complete rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 6. If the Veteran fails to report for the scheduled examination, obtain and associate with the claims file copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO/AMC is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).