Citation Nr: 1334501 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-00 352A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 N. T. Werner, Counsel INTRODUCTION The appellant served with a reserve component from May 1949 to April 1964 and from September 1970 to September 1991. The matter comes to the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Although the appellant requested the opportunity to testify at a Board hearing held at the local VA office, in August 2013, he failed to report for his scheduled Board hearing and thus the Board finds that his hearing request withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 appellant claims that his bilateral hearing loss and tinnitus were caused by his exposure to anti-aircraft cannon and machine gun fire while training with his reserve component. He also claims that his hearing disorders were caused by his exposure to small arms fire while serving with his reserve component. Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d) (2013). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, a June 2005 letter from First Coast Hearing Clinic included an opinion that the appellant's bilateral hearing loss and tinnitus were caused by excessive noise exposure including the noise exposure he had during his military career. However, the Board does not find this opinion probative evidence because the examiner did not take into account the fact that the appellant's personnel records show that his military career was entirely reserve service; while he had some documented service with an artillery unit from the late 1940's to late 1950's, his service since that time was in information support and thereafter public affairs; and when not in the reserves he worked as a printer and thereafter in publishing. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Nonetheless, the Board finds that a remand is required to obtain a VA medical opinion as to the relationship, if any, between the appellant's current bilateral hearing loss and tinnitus and his almost 32 years of reserve component service because personnel records do in facts show that he served as an artillery gunner from May 1949 to May 1952, a squad leader from May 1952 to May 1955, and a platoon sergeant from May 1955 to May 1958, all with an artillery unit; an October 1974 reserve component examination shows he had hearing loss in the left ear as defined by VA and in November 1984 showed that he had hearing loss in both ears as defined by VA (see 38 C.F.R. § 3.385 (2013)); and the Board finds that he is competent to report of having a problem with hearing people talk and/or ringing in his ears since a period of ACDUTRA or INACDUTRA because these problems come to him through his own senses (see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006)). See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006); Also see 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). A review of the record on appeal reveals only a single non reserve component medical record-the June 2005 records from First Coast Hearing Clinic. Therefore, while the appeal is in remand status the claimant should be asked to provide VA with an authorization to obtain all of his treatment records from First Coast Hearing Clinic as well as authorizations to obtain any other outstanding private and/or VA treatment records. See 38 U.S.C.A. § 5103A(b) (West 2002); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. Contact the appellant and ask him to provide authorizations for VA to obtain any of his outstanding private audiological treatment records include an authorization to obtain his treatment records from First Coast Hearing Clinic. All actions to obtain the requested records should be documented fully in the claims file. 2. Associate with the claims file, physically or electronically, any outstanding treatment records from all Florida VA Medical Centers. All actions to obtain the requested records should be documented fully in the claims file. 3. Notify the appellant that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the onset and or recurrence of his problems hearing them and/or the claimant had a problem with ringing in his ears. The claimant should be provided an appropriate amount of time to submit this lay evidence. 4. After undertaking the above development to the extent possible, schedule the appellant for an audiological VA examination to determine the origins of his bilateral hearing loss and tinnitus The claims folder should be made available to and reviewed by the examiner and all necessary tests should be conducted. After a review of the record on appeal and an examination of the appellant, the examiner should opine as to whether it is at least as likely as not that the appellant's hearing loss in either ear and/or tinnitus is related to or had its onset in his service during a period of reserve component service. In providing an answer to the above question, the examiner should specifically take note of the fact that the appellant served as an artillery gunner from May 1949 to May 1952, a squad leader from May 1952 to May 1955, and a platoon sergeant from May 1955 to May 1958, all with an artillery unity; his service since that time was in information support and thereafter public affairs; when not in the reserves he worked as a printer and thereafter in publishing; an October 1974 reserve component examination shows the appellant had hearing loss in the left ear as defined by VA and in November 1984 showed that he had hearing loss in both ears as defined by VA; and the appellant is competent to report of having a problem with hearing people talk and/or ringing in his ears since a period of ACDUTRA or INACDUTRA because these problems come to him through his own senses. In providing an answer to the above question, the examiner must specifically comment on the findings, conclusions, and rationale offered by First Coast Hearing Clinic in the June 2005 letter. If the examiner cannot provide an answer to the above question, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale for all findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal. If any benefit sought on appeal remains denied, the claimant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).