Citation Nr: 1332908 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-30 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1973. He also has additional unverified service with the Missouri National Guard from 1985 to 2004. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran requested a Board hearing in August 2009. However, prior to the scheduling thereof he withdrew his request. See September 2009 Hearing Election. 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 Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Given the legal provisions cited above, effective appellate review requires information as to which periods of the appellant's service in the National Guard represented INACDUTRA and which periods represented ACDUTRA. There is no evidence that indicates which periods of the appellant's service represented INACDUTRA or ACDUTRA. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Given the importance of the information to the appellant's claims, the Board concludes that RO must conduct further efforts to verify the appellant's periods of ACDUTRA or INACDUTRA. If such further efforts to obtain these records prove to be futile, this fact should be documented by the AMC/RO. The Veteran asserts that he has tinnitus and bilateral hearing loss attributable to service, and particularly his period of service from January 1970 to January 1973. In this regard, he asserts exposure to acoustic trauma during his service as a "machine maintenance person." See e.g. VA Form 21-526 dated in October 2007. He had service as a Power Generator Operator. See DD Form 214. In furtherance of substantiating his claims for service connection of bilateral hearing loss and tinnitus the Veteran was afforded a VA examination in May 2008. Examination at that time resulted in an assessment of tinnitus, as well as bilateral normal to severe sensorineural hearing loss, notably to a level considered a disability for VA purposes. See 38 C.F.R. § 3.385. With respect to bilateral hearing loss, the examiner rendered a negative etiological opinion, stating that hearing loss was "less likely as not" caused by a result of in-service acoustic trauma.. She reasoned that the "[f]irst direct evidence of hearing loss is audiometric results dated 12/24/1985, 13 years after separation." She explained, also that "[t]here is a significant history of post-service occupational [...] and recreational noise exposure." Saliently, the Board notes that the December 1985 evidence that the examiner cited is the Veteran's National Guard entrance examination. With respect to tinnitus, in an addendum opinion entered in November 2008, the examiner also rendered a negative etiological opinion that tinnitus was not at least as likely as not a result of in-service acoustic trauma. She referred to her opinion of May 2008 and noted that tinnitus was right-sided only. She explained that there was no evidence of hearing loss occurring on active duty due to acoustic trauma, "to which to link [the] Veteran's current complaint of tinnitus" and that the "[f]irst direct evidence for hearing loss occur[red] in 1985." She noted that the Veteran had reported tinnitus since Vietnam after an incident where a "generator 'went out of control' and made a loud bang" and that this incident was "not recorded or described in the [service treatment records]." Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Pursuant to 38 C.F.R. § 4.2 (2012), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. The May 2008 VA examination report and November 2008 addendum are insufficient to decide the claims. The examination report only addresses whether the Veteran has bilateral hearing loss and tinnitus attributable to his first period of service from January 1970 to January 1973. The opinions do not address whether the Veteran incurred or aggravated tinnitus and bilateral hearing loss during his National Guard service. Notably, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. In the present case, the Veteran's sensorineural hearing loss and tinnitus are claimed as related to acoustic trauma and thus qualify as injury. Accordingly, the opinions are inadequate and must, therefore, be returned. 38 C.F.R. § 4.2. The Board notes that at the May 2008 VA examination, the examiner referenced that the Veteran had brought with him to the examination hearing conservation data from his employer. Upon review of the claims file, the Board is unable to locate any such records. Upon remand, the AMC/RO should attempt to obtain these records from the Veteran or from his employer. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1) (2012). Upon remand, the Veteran must be asked to execute a VA Form 4142, so that VA may attempt to obtain any audiology records from his employer and associate them the claims file. The Veteran should also be advised that he may alternatively submit these records. Lastly, the Board notes that the VA examiner's November 2009 opinion indicates that tinnitus may be attributable to bilateral sensorineural hearing loss on a secondary basis. Upon remand, the Veteran should be provided notice of how to substantiate a claim for service connection on a secondary basis. See 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Veteran concerning how to substantiate a claim for service connection on a secondary basis pursuant to 38 C.F.R. § 3.159 (2012). 2. Conduct any additional efforts, to include contacting the appellant and any appropriate agency or National Guard unit, to verify all periods of ACDUTRA and INACDUTRA. Reports of retirement points do not contain the necessary information in this regard. If it is not possible for this information to be obtained, this fact should be specially documented in the claims folder. 3. Forward the Veteran a VA Form 21-4142 for his execution and inform him of the necessity of executing this release and the consequences of failing to cooperate with VA's reasonable efforts to obtain audiology records from his employer. If the Veteran returns the release, attempt to obtain these records. Perform any follow-up as necessary and document any negative results, should the Veteran request VA's assistance in attempting to obtain these records. The Veteran should also be informed that he may alternatively provide VA such records and be invited to submit the same. 4. After the development directed in paragraphs 1 through 3 has been completed to the extent possible, schedule the Veteran for a new VA audiological examination to determine the presence, severity and etiology of the Veteran's claimed bilateral hearing loss and tinnitus. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions regarding noise exposure, hearing loss and tinnitus, as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiners should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that tinnitus and/or bilateral hearing loss is/are attributable to service, including the Veteran's history of noise exposure experienced in service, including any period of ACDUTRA or INACDUTRA. If for either bilateral hearing loss or tinnitus, the examiner finds that it is less likely than not that the condition is attributable to service, the examiner is asked to address whether it is at least as likely as not that the condition was aggravated in service, particularly during any period of ACDUTRA or INACDUTRA. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 5. After the development directed above has been completed to the extent possible, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL A. PAPPAS 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).