Citation Nr: 1334024 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-23 147 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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. In this case, there are Kirksville Community Based Outpatient Clinic (CBOC) and Columbia VA Medical Center (VAMC) treatment records covering treatment from January 2011 to September 2012 in Virtual VA. The RO added these treatment records to the Veteran's Virtual VA file in March 2012 and December 2012, subsequent to their July 2011 statement of the case. The Veteran's representative submitted an October 2013 waiver of the RO's initial review of these additional treatment records, allowing the Board's review of the new evidence. 38 C.F.R. § 20.1304. The Veteran had also requested a hearing before a member of the Board on his August 2011 substantive appeal, but withdrew that request in a May 2013 statement. 38 C.F.R. § 20.704(e). 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 an Aviation Mechanic in the United States Navy during the Vietnam Era. The Veteran feels that he incurred exposure to hazardous noise in service as an Aviation Mechanic, and that this in-service acoustic trauma has caused his tinnitus and aggravated his pre-service hearing loss. His DD 214 supports this contention, showing that his military occupational specialty was that of an Aviation Structural Mechanic Structures, thus it is accepted that he was exposed to loud noise in service. Here the Veteran's December 1966 entrance examination notes hearing loss for VA purposes at entrance into service, at 4000 Hertz. The May 2010 VA examiner gave a negative medical nexus opinion on the possibility of direct service connection for hearing loss. In that opinion, he discussed the Veteran's November 1970 separation examination with 15/15 whisper testing, and stated that giving an opinion for aggravation based on this whisper testing was not, "a viable option." This discussion failed to consider the higher evidentiary standard for determining whether any in-service increase in the severity of hearing loss was due to the natural progression of the disease. Unfortunately, the October 2010 private medical opinion failed on these accounts as well. In that opinion it was noted that cell damage in the cochlea occurs prior to the showing of threshold shifts. The VA examination did not discuss this point. As to tinnitus, the VA examiner cited the onset for tinnitus as the "last 10 years." However, the Veteran has consistently reported on his February 2010 claim, his February 2011 Decision Review Officer's Process election, and a June 2011 statement that his tinnitus had its onset in service. 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 onset for tinnitus 10 years ago, is based on an incomplete medical history, and is therefore inadequate for adjudication purposes. If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. See 38 C.F.R. § 4.2. Further, 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). As this May 2010 VA examination is inadequate for rating purposes, the Board must remand the issues of service connection for hearing loss and tinnitus for a new VA examination. Finally, the Veteran appears to receive routine healthcare at the Kirksville CBOC and Columbia VAMC. On remand, the RO/AMC should obtain any treatment records since September 2012. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Kirksville CBOC and Columbia VAMC for any treatment records since September 2012. The RO/AMC should then obtain and associate the VA treatment records with the claims file. 2. After the records noted above have been associated with the claims file, schedule the Veteran for a VA audiological examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. a. The examiner should provide an opinion as to whether the Veteran's hearing loss as now constituted was at least as likely as not (50 percent or greater probability) aggravated by service. In making that determination, consideration of cell damage to the cochlea due to in-service acoustic trauma should be discussed. It should also be discussed whether the type of hearing loss found it indicative of acoustic trauma or other cause. Recent reference to "infection" has been made and should be further discussed that it was in the May 2010 examination. If indicia of infection are present, that should be noted. b. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed tinnitus had its onset during active service or is related to any in-service disease, event, or injury; including his exposure to aircraft noise as an Aviation Mechanic. 3. 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. 4. 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). _________________________________________________ MICHAEL D. LYON 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).