Citation Nr: 1332660 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-12 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers (NACVSO) ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 until October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Detroit, Michigan. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are no additional treatment records among the Veteran's paperless records in the Virtual VA system or VBMS. 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 Board finds that additional development is required before the Veteran's claims of service connection for hearing loss and tinnitus may be decided. The Veteran has reported that he served as a gunner in the United States Navy during the Vietnam Era. He feels that he incurred exposure to hazardous noise in service as a result of his work with large weapons as a gunner, and that this in-service acoustic trauma has caused his current hearing loss and tinnitus. The Veteran attended an April 2011 VA audiological examination in connection with these claims. The April 2011 VA examiner diagnosed tinnitus and hearing loss for VA purposes as defined at 38 C.F.R. § 3.385, and offered negative medical nexus opinions for each condition. He based these negative medical nexus opinions on his review of the Veteran's October 1965 entrance examination and October 1967 separation examination, each showing normal results from a 15/15 whisper test. The VA examiner also cited the earliest possible onset for hearing loss and tinnitus as March 2011 based on the Grand Rapids VA Medical Center (VAMC) treatment records. However, the Veteran's private treatment records also show complaint of hearing loss and tinnitus in March 2002, 9 years earlier than the date of onset relied upon by the VA examiner in the rationale supporting his negative medical nexus opinions. The March 2002 private treatment records also include a hand written note attributing hearing loss and tinnitus to noise in the Navy as a gunner. The private treatment records further show consistent complaint for tinnitus in October 2006, November 2007, and March 2010; and referral in November 2004 to Western Michigan ENT (ears, nose, and throat). The November 2004 treatment notes from Western Michigan ENT show diagnosis for sensory neural hearing loss and tinnitus. Unfortunately, none of the private treatment records include the audiograms leading to the diagnoses, and the March 2002 positive medical nexus opinion includes no supporting rationale. A medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007). Without the supporting audiograms or a supporting rationale, the Board cannot rely on these private treatment records to award service connection. However, the April 2011 VA examination is also inadequate for failure to review these private treatment records. When the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The opinion based on March 2011 onset for hearing loss and tinnitus as supported by the VA treatment records, to the exclusion of the private treatment records showing onset as early as March 2002, is based on an incomplete medical history and is therefore inadequate. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board therefore finds that another VA examination and medical opinion is necessary in this case to make a determination assessing whether the Veteran's bilateral hearing loss and tinnitus are related to his service. Finally, the Grand Rapids VAMC treatment records relied on by the April 2011 VA examiner do not appear in either the Veteran's claims file, or his Virtual VA file. As VA is held to be in "constructive possession" of VA generated records, the Board must remand this case for obtaining those treatment records. Bell v. Derwinski, 2 Vet. App 611 (1992). On remand the AMC/RO should also give the Veteran the opportunity to submit any additional private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to authorize the release of any additional private treatment records. The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not of record. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. The RO/AMC should contact the Grand Rapids VAMC for all audiology records, including the March 2011 records reviewed by the April 2011 VA examiner. The RO/AMC should then obtain and associate the VA treatment records with the claims file. 3. After the records noted above have been associated with the claims file, schedule the Veteran for a VA audiological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hearing loss and tinnitus had their onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions; discussing all relevant medical history including the private treatment records, conclusions reached, and citing the objective medical findings leading to the conclusions. 4. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ CHERYL L. MASON 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).