Citation Nr: 1332444 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 08-35 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a right ear disability, to include hearing loss and middle ear dysfunction. ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served in the Army National Guard from February 1976 to February 1982 with verified periods of active duty for training (ACDUTRA), to include from April 11, 1976 to August 28, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for right ear hearing loss and degenerative disc disease of the lumbar spine. The right ear claim has been recharacterized as noted on the title page to better reflect the Veteran's contentions. The Veteran requested, and was scheduled for, a hearing before a Veterans Law Judge in February 2010; notice of such was mailed to him at his address of record. The Veteran failed to report for the hearing without explanation or request to reschedule. The hearing request is therefore considered withdrawn. See 38 C.F.R. § 20.704. In February 2010, the Board remanded both claims for additional development. In July 2011, the Appeals Management Center (AMC) granted service connection for degenerative disc disease of the lumbar spine and assigned a 10 percent rating. The Veteran filed a timely notice of disagreement later that month. In September 2011, the Board denied service connection for right ear hearing loss. The Board also remanded the claim of entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine so that a statement of the case (SOC) could be issued. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court) with respect to the right ear claim. In a December 2012 Memorandum Decision, the Court vacated and remanded the September 2011 determination that service connection was not warranted for right ear hearing loss. In May 2013, the Board remanded the right ear claim for further development. As will be explained below, review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, this claim must be remanded again. The record raises an informal claim of entitlement to service connection for tinnitus. This issue has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate development. The Board notes that the AOJ has not yet issued an SOC with respect to the Veteran's increased rating claim despite being reminded to do so in the May 2013 Decision. Thus, the increased rating claim is still pending, and the September 2011 Remand Order is still active as to that issue. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the claim. The Veteran contends that he injured his right ear during training due to noise exposure from rifles, grenades, and machine guns. Specifically, he complains of hearing loss and ear pain with exposure to cold temperatures and wind. The Board has conceded noise exposure. See May 2013 Decision. It is unclear when this injury occurred (i.e., during ACDUTRA or while in the National Guard). However, the Veteran reports that he has experienced right ear problems ever since that time. As noted above, the Veteran served in the Army National Guard from February 1976 to February 1982. He has consistently stated that he reenlisted for another term, and that it was during this examination that right ear hearing loss was first noted. Specifically, the Veteran maintains that he "could not hear anything out of [his] right ear," but that the nurse "passed" his examination. See August 2005 VA Form 21-526. He further contends that the nurse told him the right ear hearing loss was "due to [the] rifle range and [the] grenade range." See February 2006 VA Form 21-4138. According to the Veteran, this took place in "April 1982 or 1985." See November 2008 VA Form 9. On appeal in February 2010, the Board remanded the right ear claim so that service personnel records could be obtained. At that point, the only service treatment record (STR) in the claims file was an April 1985 National Guard enlistment examination that contains evidence of hearing loss, but not for VA purposes. Subsequently, the AOJ requested service personnel records from the Louisiana State Adjutant General. In May 2010, the AOJ received photocopies of STRs and service personnel records for the Veteran's National Guard service. These documents include a February 1976 enlistment examination, an April 1981 periodic examination, and an August 1976 REFAD (exit) examination. The Board notes that each of the examination reports contain a normal clinical evaluation of the Veteran's ears. However, the second page of each examination report is missing. These pages are relevant as they would contain the results of any hearing tests conducted. The second page of each accompanying medical history report is also missing. These pages are relevant as they would contain any complaints of ear problems, as well as any relevant notations from the clinician. Indeed, the Veteran reported ear trouble in August 1976. Attempts to obtain these records must be made. March 2011 VA treatment records show that the Veteran complained of an earache and hearing loss. He reported a five-year history of right ear problems, to include intermittent pain. An April 2011 audiology consultation note shows that the Veteran reported right ear pain that was aggravated by cold weather and wind. The clinician diagnosed mild to severe conductive hearing loss and recommended an ENT consultation "for further investigation of the conductive loss." The Veteran submitted to a VA audiological examination in May 2013. An audiogram revealed right ear hearing loss for VA purposes. The examiner diagnosed sensorineural hearing loss from 500-4000 Hz and provided a negative nexus opinion. She noted that there was no reported combat duty, but that the Veteran attributed his military noise exposure to grenades, M16s, and the rifle range. She also noted that the claims file contained no enlistment or separation audiometric examination. Finally, the examiner reasoned that the April 1985 audiogram showing mild hearing loss was conducted nine years after the Veteran's discharge from ACDUTRA service in August 1976. The Board finds that the current VA medical examination opinion is adequate in light of the missing STRs. In addition, the VA examiner did not mention conductive hearing loss, nor did she specifically address the conductive hearing loss diagnosis contained in the April 2011 VA treatment record. Accordingly, it is unclear as to what extent the Veteran's current right ear hearing loss is attributable to conductive hearing loss, and to the extent that it is, whether the Veteran's conductive right ear hearing loss is etiologically related to conceded noise exposure during active service. Furthermore, given the Veteran's assertions that he has experienced right ear pain since service and the April 2011 record indicating that an ENT consultation was warranted, the Veteran must be accorded a VA ENT examination to determine the nature, extent and etiology of any middle right ear dysfunction. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC, or any other appropriate service organization, to include the Louisiana State Adjutant General, and attempt to obtain the second page of the February 1976, April 1981, and August 1976 examination reports, as well as the second page from the accompanying medical history reports. 2. Then, schedule the Veteran for a VA audiological examination with an appropriate medical professional to determine the etiology of the Veteran's right ear hearing loss, including an ENT examination to determine the etiology of any current middle ear dysfunction. The claims folder, including a copy of this remand, must be sent to the examiner for review in conjunction with the examination, and a notation should be made in the evaluation report that this review has taken place. The examiner should answer the following questions: (a) Is it at least as likely as not, i.e, a 50 percent probability or greater, that any right ear hearing loss either had its onset during the Veteran's active service or is otherwise etiologically related to his conceded in-service noise exposure? (b) Is it at least as likely as not, i.e, a 50 percent probability or greater, that any currently diagnosed middle ear dysfunction either had its onset during the Veteran's active service or is otherwise etiologically related to his conceded in-service noise exposure? A complete rationale should be given for all opinions and conclusions expressed. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. 3. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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). _________________________________________________ J.A. MARKEY 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) (2013).