Citation Nr: 1335050 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-09 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and N.A. ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran and N.A. testified before the undersigned Veterans Law Judge at a Board hearing at the local RO in August 2012. A transcript of the hearing has been associated with the claims file. At the Board hearing and subsequently, the Veteran submitted additional evidence along with a waiver of agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. In his March 2013 substantive appeal and at the Board hearing, the Veteran indicated that he was also seeking service connection for tinnitus. This issue was previously denied by the AOJ in a February 2010 rating decision. The Veteran did not initiate an appeal from this determination in accordance with 38 C.F.R. § 20.201 (2013). As such, the matter is now considered a claim to reopen such previously denied claim and has not been adjudicated by AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 claim. A review of the Veteran's Virtual VA electronic claims folder reveals that the documents are either duplicative of records already associated with the paper claims file or are not relevant to the issue on appeal. 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 claim 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 is seeking service connection for bilateral hearing loss. He claims that he has hearing loss from artillery noise exposure during active duty as well as subsequent active duty for training (ACDUTRA) until 1971 with the 171st Artillery Unit for the New Orleans Army National Guard. He has reported that he was a gunner/cannoneer while with the National Guard. The Veteran was afforded a VA examination in September 2009. The examiner determined that the Veteran's hearing loss was not related to service because he had normal hearing at separation. However, it does not appear that the examiner considered the Veteran's subsequent periods of ACDUTRA with the Army National Guard. Moreover, the Veteran does not have to show hearing loss at the time of discharge in order to establish service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, it does not appear that the examiner considered the Veteran's statements of pertinent symptoms of hearing loss since service. Moreover, service treatment records document complaints of ear trouble in April 1965, as well as in the Veteran's report of medical history in June 1965 prior to discharge, which were not addressed by the examiner. The examiner also failed to address and consider a May 2009 private opinion by C.I, Ph.D, CCC A, which indicated that the Veteran's hearing loss was consistent with noise-induced hearing loss. Dr. C.I. also provided another opinion in July 2012 that has not been considered by a VA examiner. Accordingly, the Board must find that the examination is deficient as the examiner did not provide a sufficient rationale for the opinion provided and did not consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Therefore, the Veteran must be afforded another VA examination with a new examiner, if possible, to address the etiology of his hearing loss. Moreover, the claims file does not include the Veteran's National Guard records. The AOJ should request the Veteran's National Guard treatment and personnel records, including verification of periods of ACDUTRA. Lastly, at the Board hearing, the Veteran indicated that he received treatment for his hearing loss from Dr. C.I. The claims file includes records from March 2007 to May 2009. It is unclear whether the Veteran has received any additional treatment from Dr. C.I. In light of the need to remand for other matters, the AOJ should take appropriate steps, including contacting the Veteran and obtaining any necessary authorization, to obtain any additional treatment records from Dr. C.I. from May 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's National Guard service treatment and personnel records, including verification of periods of ACDUTRA. 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 and 38 C.F.R. § 3.159. 2. Appropriate action should be taken, including contacting the Veteran and obtaining any necessary authorization, to obtain any additional treatment records from Dr. C.I. from May 2009 to the present. If the Veteran responds, all reasonable attempts should be made to obtain such records. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining any outstanding records, schedule the Veteran for a VA audiological examination with a different licensed audiologist from 2009, if possible, to determine the nature, extent and etiology of any currently manifested hearing loss. The claims file must be made available to the examiner for review. After examining the Veteran and reviewing the claims file, the examiner should determine whether it is at least as likely as not (a 50% or higher degree of probability) that any current hearing loss is related to acoustic trauma during active duty service and/or ACDUTRA. A detailed rationale for all opinions expressed should be furnished. In proffering the opinion, the examiner should specifically address the Veteran's lay statements of pertinent symptoms since service; the hearing testimony of N.A. indicating that the Veteran had hearing trouble as early as 1980; the April 1965 service treatment record and June 1965 report of medical history documenting ear trouble; and the May 2009 and July 2012 private opinions by Dr. C.I. 4. After completing the above, and 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 claim should be readjudicated based on the entirety of the evidence. If the claim 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). This claim 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).