Citation Nr: 1331441 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 13-21 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran's service treatment records are unavailable and were apparently destroyed in the 1973 fire at the National Personnel Records Center. All efforts to obtain them have been unsuccessful. At a July 2010 VA examination, a VA examiner diagnosed the Veteran with bilateral tinnitus, sensorineural hearing loss in the right ear, and mixed hearing loss in the left ear. The examiner stated that she was unable to provide a nexus opinion without resorting to speculation because the Veteran's service treatment records had not been provided. This opinion is insufficient for adjudication of the claims. Despite the absence of service treatment records, the Veteran is competent to describe his in-service tinnitus and decreased hearing acuity symptoms and continuity of these symptoms after discharge. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, in-service acoustic trauma has been conceded based on the circumstances of the Veteran's service, namely his attachment to an infantry unit. 38 U.S.C.A. § 1154(a). The examiner's opinion does not reflect adequate consideration and discussion of the Veteran's competent report on the onset of his tinnitus and hearing loss symptoms in service and the continuity of symptoms following discharge. Moreover, a medical opinion based solely on the absence of documentation in the record is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, a new opinion is needed, and it must be based on the results of the current clinical examination, the Veteran's pertinent history, his in-service noise exposure, his competent report as to his observable symptoms in service and thereafter, and applicable medical principles. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The Board also notes that the post-service VA treatment records show the Veteran reported a history of chronic ear infections as a child and a history of ear surgery in the 1968 for an ossicular problem. (See the March 2002 VA audiology consultation). The medical records pertinent to the 1968 surgery are not of record and it does not appear that the RO attempted to obtain them. On remand, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding, including the records from the 1968 ear surgery. See 38 C.F.R. § 3.159(c)(2); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Accordingly, the case is REMANDED 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 Veteran is asked to provide, or authorize VA to obtain, any and all non-duplicative private treatment records pertaining to his claimed disabilities, to include all medical records pertaining to the 1968 ear surgery. All efforts to obtain any and all identified records must be fully documented in the claims file. All pertinent VA treatment records from June 2013 to the present must be added to the claim file, either physically or electronically through Virtual VA. 2. Notify the Veteran that he may submit lay statements from himself, as well as from individuals who have first-hand knowledge of the nature, onset, and duration of his tinnitus and hearing loss. 3. After any additional records are associated with the claim file, return the file to the examiner that provided the July 2010 opinion to prepare an addendum to the VA examination report. If that examiner is unavailable, the claim file must be sent to another examiner with appropriate expertise. All indicated studies must be performed and the findings reported in detail. The claim file must be made available to the new examiner as well. Based on the information contained in the claim file, including this remand, the examiner is to provide an opinion as to whether it is at least as likely as not that the Veteran's tinnitus and bilateral hearing loss disabilities had clinical onset in service or are otherwise related to service; or, manifested within a year of discharge. In offering these opinions, the examiner should discuss the Veteran's competent report as to a continuity of symptoms since service (as well as his reported lack of excessive noise exposure after service), in determining whether any current tinnitus or bilateral hearing loss disability is consistent with the nature and circumstance of his in-service and post-service history. The examination report must include a complete rationale for all opinions expressed. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicated the claims. If the benefits sought on appeal remain denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ C. CRAWFORD 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).