Citation Nr: 1331003 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-14 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Christopher Loiacono, The National Veterans Disability Advocates, LLC ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1954 to November 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The file includes a September 2013 informal hearing presentation from the Veteran's representative indicating that the Veteran is also claiming entitlement to service connection for tinnitus. As this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not therefore have jurisdiction over it, and the matter is referred to the AOJ for appropriate action. In his VA Form 9 substantive appeal, which was received by VA in June 2012, the Veteran had requested to be scheduled for a hearing at a VA Regional Office before a Veterans Law Judge from the Board. A videoconference hearing was duly scheduled to be held at the RO in July 2013, and notice of this hearing was provided to the Veteran via correspondence dated in June 2013, which was sent and delivered to his last known mailing address. However, the claims file indicates that the Veteran failed to appear for this hearing, did not timely show good cause as to why he was unable to attend his hearing, and did not otherwise request a new hearing. His hearing request is therefore deemed to have been constructively withdrawn. 38 C.F.R. § 20.702(d) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND As pertinent to the bilateral hearing loss claim, private audiological assessments of the Veteran's hearing acuity in March 2008 and December 2009 show a diagnosis of bilateral sensorineural hearing loss of such severity as to warrant referral for electronic hearing aids. Although the objective audiometric clinical data is presented in the form of a raw graph that has not been interpreted and presented in a format using established VA criteria for objectively quantifying severity of hearing loss, it demonstrates significant bilateral hearing loss and very low word recognition scores that, on their face, obviously indicates that the Veteran's level of hearing impairment presently meets the regulatory criteria for hearing loss in both ears for VA compensation purposes, as prescribed in 38 C.F.R. § 3.385 (2013). The Veteran's DD-214 Form reflects that during active duty in the United States Army, he was assigned to the 69th Infantry Division Special Training School in Fort Dix, New Jersey, where he received infantry training. His DD-214 Form also indicates that prior to entering service, he was employed as a bartender and had earned a four-year college degree with a Bachelor of Science in business administration. The Veteran indicated in his claim that he had a 50-year history of bilateral hearing loss, which broadly places onset of his perceived hearing loss in the general time period of his active military service, with continuity of symptomatology thereafter. The Veteran, via his representative, asserts the plausible argument that his handling and operating of small arms during infantry training in service was his only significant exposure to acoustic trauma during his lifetime, given his educational level and his established post-service career as an accountant, in which he was not exposed to any significant levels of noise while engaged in this white-collar profession. The Veteran's primary contention is that his current bilateral hearing loss is the result of his unprotected exposure to the aforementioned acoustic trauma during military service. (The Board observes that although the Veteran is a Korean Conflict Era serviceman, his military records reflect that he did not serve in the Republic of Korea and that he is not a combat veteran, such that his claim would be allowed consideration under the provisions of 38 C.F.R. § 3.304(d) (2013) regarding sufficiency of lay evidence that a disability was incurred in combat if consistent with the circumstances and hardships of combat service, notwithstanding the absence of any official record of such incurrence.) At this juncture, the Board notes that documents from the National Archives Administration and the National Personnel Records Center (NPRC) associated with the Veteran's claims file indicate that his service medical and personnel records are unobtainable by VA as they were presumed destroyed in the July 1973 fire at the NPRC records storage facility in St. Louis, Missouri. As such, in cases where a veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The heightened duty to assist in developing pertinent facts where service records are presumed destroyed includes the obligation to search for alternative records. Moore v. Derwinski, 1 Vet. App. 401 (1991). In this regard, in response to queries by VA, the Veteran reported in August 2010 that he had no service records in his possession, nor could he provide any information as to where alternative records of medical treatment in service for his hearing loss could be obtained. The Board also notes, however, that the Veteran was not provided with a VA audiological examination that addressed his current claim for VA compensation for bilateral hearing loss. Given VA's elevated duty to assist the claimant in this particular case, a remand for a VA examination is warranted so that an objective nexus opinion may be obtained addressing the likelihood that the Veteran's present bilateral hearing loss had its onset in service, if it is determined that its current level of severity is consistent with the clinical progression of such hearing impairment since the Veteran's period of active duty (i.e., January 1954 - November 1955), assuming as true that he was exposed to acoustic trauma from small arms training during service and had no subsequent significant post-service noise exposure thereafter. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO/AMC for the following action: (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. The pertinent clinical evidence is current through December 2009. The RO should therefore obtain the names and addresses of all medical care providers, both VA and non-VA, that treated the Veteran for complaints relating to his bilateral hearing loss from December 2009 to the present. After obtaining the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, to provide the Veteran with the opportunity to obtain and submit those records for VA review. 2. The Veteran should be scheduled for a VA examination by an appropriate clinician to determine the etiology of his bilateral sensorineural hearing loss in the context of his relevant clinical history. All tests deemed appropriate by the examiner should be conducted. The Veteran's claims file must be made available for the examiner's review in conjunction with this examination and the examiner must state in his/her report that the Veteran's claims file was reviewed. Thereafter, the clinician should present an opinion, with complete supportive rationale, addressing the following question: Given the current severity of the Veteran's bilateral hearing loss condition and the likelihood of his exposure to high noise levels during active duty from operating small arms during infantry training, is the Veteran's current bilateral hearing loss at least as likely as not the result of his exposure to acoustic trauma from regularly operating small arms during infantry training over 55 years earlier, from January 1954 to November 1955? (For purposes of presenting the opinion, the examiner should assume as true that the Veteran served in close proximity and was regularly exposed to the noise of small arms fire with minimum or nonexistent hearing protection during the time period in question and that he was not subsequently exposed to any significant levels of noise thereafter for the entirety of his post-service life.) The VA examiner should include a detailed supportive rationale for the requested opinion in the discussion. If the opining examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated with a complete rationale as to why the examiner arrived at this conclusion. The examiner should use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50percent), "at least as likely as not" (meaning likelihood of at least 50 percent) or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Thereafter, the RO/AMC should ensure that the above development is fully undertaken, taking any corrective actions deemed necessary to ensure substantial compliance with the Board's instructions presented above. 4. Afterwards, the RO/AMC should readjudicate the Veteran's claims of entitlement to service connection for bilateral hearing loss. If the full benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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). _________________________________________________ JONATHAN B. KRAMER 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).