Citation Nr: 1332894 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-24 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from March 1969 to December 1970. He has been awarded the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Veteran's representative's September 2013 Informal Hearing Presentation. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he suffers from hearing loss and tinnitus as a result of his in-service noise exposure. The Board notes that the Veteran's military occupational specialty (MOS) of Light Weapons Infantry is among those listed in the Department of Defense's Duty MOS Noise Exposure Listing. A February 2007 VA audiology treatment note indicates that the Veteran complained of bilateral hearing loss and tinnitus with an onset of symptoms shortly following military service. He further indicated that he saw considerable combat in Vietnam, including a grenade explosion on his right side about 10 to 15 feet away. After completing an examination, bilateral high frequency sensorineural hearing loss was diagnosed and the examiner noted that it was as likely as not that the Veteran's hearing loss and tinnitus were "service-connected." However, the examiner did not have the benefit of reviewing the record, did not take into consideration the Veteran's post-service noise exposure, and did not offer a rationale for his opinion. In light of the Veteran's in-service noise exposure, the current diagnosis of bilateral hearing loss and tinnitus, and the February 2007 notation relating such to service, he was provided with a VA examination in October 2007 to determine the etiology of such disorders. Following a review of the record, an interview with the Veteran, and an audiological examination, the examiner opined that the Veteran's hearing loss and tinnitus were less likely as not related to his service because, while there was a threshold shift in the Veteran's hearing, it was still within normal limits. Additionally, the examiner found that the Veteran's post-service 35 years of factory work "has most likely attributable to some of his hearing loss." A specific rationale with regard to tinnitus was not provided. However, the Board finds that such opinion is inadequate. In this regard, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined that an examination was inadequate where the examiner did not comment on the Veteran's reports of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. However, the October 2007 VA examiner did not discuss the Veteran's lay assertions of exposure to acoustic trauma in service. Such consideration is particularly important in this case, where the Veteran has been shown to have participated in combat and has alleged that his disabilities resulted from an injury sustained during this combat (i.e., acoustic trauma). In addition, the Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As previously indicated, the October 2007 VA examiner failed to provide a rationale with regard to the etiology of the Veteran's tinnitus. Moreover, in July 2009, after the issuance of the October 2007 examination report, the Veteran submitted a March 1972 employment examination report. This examination report indicated that the Veteran's ears were "normal" but noted a small scar on the top of the left drum. Specific hearing thresholds were not recorded. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2007 VA examination report is inadequate as the examiner did not consider the Veteran's reports of an in-service injury and failed to provide a rationale with regard to tinnitus. In addition, the October 2007 VA examiner did not have the opportunity to consider the March 1972 employment examination report. Therefore, a remand is necessary in order to obtain an addendum opinion so as to determine the nature and etiology of the Veteran's current bilateral hearing loss and tinnitus. The Board also notes that it is not clear whether the Veteran had undergone regular examinations in conjunction with his previous employment, which may document hearing loss and tinnitus or whether he received regular treatment from any provider with regard to his bilateral hearing loss and tinnitus. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who had either treated him or examined him for his claimed bilateral hearing loss and tinnitus and to submit any treatment records or statements addressing the etiology of such disorder. Thereafter, any identified records, to include VA treatment records from the facility in Mountain Home, Tennessee, dated from November 2008 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who evaluated and/or treated him for his claimed bilateral hearing loss and/or tinnitus since service and to submit any additional statements addressing the etiology of such disorder(s). After securing any necessary authorization from him, obtain all identified treatment records or employment physicals, to include VA treatment records from the facility in Mountain Home, Tennessee, dated from November 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the claims file, to include a copy of this remand, to the October 2007 VA examiner for an addendum opinion. If the examiner who drafted the October 2007 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss and/or tinnitus are related to his in-service acoustic trauma. In this regard, the examiner must consider the fact that the Veteran's MOS is among those listed in the Department of Defense Duty MOS Noise Exposure Listing. The examiner should also consider the findings as noted on the Veteran's March 1972 employment physical examination, to include a small scar on the top of the left drum, and the opinion of the February 2007 VA examiner that the Veteran's bilateral hearing loss and tinnitus are "service-connected." In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the onset and continuity of symptomology since service. The examiner should also discuss the rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence of the record. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).