Citation Nr: 1334603 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-15 557 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to July 1973, and from September 1973 to August 1974. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision in which the RO denied service connection for bilateral hearing loss and tinnitus. In June 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2011. The folder associated with the Veteran's claims in the Virtual VA paperless claims processing system does not contain additional evidence relevant to this appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that t further RO action on the claims on appeal is warranted. The Veteran served as a U.S Army medical technician with no overseas or combat service. In a June 2010 notice of disagreement, the Veteran contended that his hearing loss and tinnitus disorders were caused by exposure to small arms and light infantry weapons in basic training. Service treatment records document no complaints, findings or diagnoses pertinent to diminished hearing or tinnitus. Audiograms of testing conducted in April 1972 and February 1975 show normal hearing acuity. A July 1973 examination did not contain the results of a hearing acuity test although the record contains an undated and unevaluated audiometric data card that suggests abnormal pure tone thresholds at higher frequencies. The Veteran submitted a report of audiometric testing by a private clinic in September 2009 that showed moderate bilateral high frequency sensorineural hearing loss. The examiner did not note symptoms of tinnitus and did not address the origin of the abnormalities. In January 2010, the Veteran underwent a VA contract audiology evaluation. The audiologist noted the Veteran's reports of noise exposure to small arms and light infantry weapons during basic training. The Veteran reported difficulty hearing movies and television and the sensation of ringing in the ears that began 20-30 years earlier, which would place the onset after active service. The Veteran reported civilian occupational noise exposure as a welder, truck driver, and police officer and recreational exposure from motorcycles, lawn mowers, and watercraft. Audiometric testing and speech discrimination scores revealed bilateral hearing loss to an extent recognized as a disability for VA purposes, and the audiologist diagnosed bilateral hearing loss and tinnitus. The audiologist opined only, "The etiology of bilateral tinnitus is at least as likely as not associated with hearing loss and/or noise exposure in the military." The audiologist did not address the etiology of the hearing loss itself or comment on the Veteran's brief military and longer post-service noise exposure. In March 2010, the RO denied service connection for bilateral hearing loss and tinnitus on the basis that the Veteran had no noise exposure because of his military occupation as a medic. The Board finds that the private and VA records do not provide sufficient information to decide, in particular, the claim for service connection for hearing loss. As noted, no examiner has commented on the etiology of hearing loss, despite the clear showing of current hearing loss disability and the Veteran's assertions of in-service noise exposure. As regards the latter, the Board notes that, although the Veteran may have been exposed to less acoustic trauma than a soldier in other occupations or in combat, he has reported experiencing some noise exposure during basic training, which appears consistent with the nature and circumstances of basic training that preceded training in his medical specialty. Indeed, the VA contract audiologist acknowledged both in-service and post-service exposure in commenting on the etiology of tinnitus; however, that examiner failed to address the etiology of the diagnosed bilateral hearing loss. Moreover, although the VA audiologist opined that that the tinnitus was likely caused by noise exposure and/or is secondary to hearing loss, that examiner did not comment on or even appear to fully consider the nature, extent, and duration of the Veteran's in-service noise exposure during basic training and post-service and occupational and recreational noise exposure. Accordingly, additional examination and opinions are needed to resolve both claims on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claims for service connection. See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The Veteran has not reported and the current record does not show that the Veteran is receiving on-going VA medical care or Social Security Administration or other disability benefits. However, the RO should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection for bilateral hearing loss and tinnitus. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to entitlement to bilateral hearing loss and tinnitus that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative, if any, of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, an appropriate time period for the Veteran's response has expired, arrange for him to undergo VA examination by an Ear, Nose and Throat (ENT) physician, or audiologist The entire claims file, to include complete copy of the REMAND, along with copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. Considering the documented evidence of bilateral hearing loss disability for VA purposes and tinnitus, with respect to each disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is had its onset during service, or is the result of in-service disease or injury-specifically, noise exposure during basic training. If tinnitus is not deemed directly related to service, the examiner should also opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that tinnitus was caused, or is aggravated (worsened beyond natural progression) by hearing loss. In rendering each requested opinion, the examiner should consider and discuss all pertinent evidence and information, to include with respect to the Veteran's own descriptions of in-service noise exposure, and post-service occupational and recreational noise exposure. The examiner should set forth complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims for service connection for bilateral hearing loss and tinnitus in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).