Citation Nr: 1335522 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-06 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for hearing loss. ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 until April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut. 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. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are Stamford VA Outpatient Clinic (VAOPC) treatment records covering treatment from March 2002 to April 2012 in the Virtual VA system. There are no additional records in VBMS. 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 claim of service connection for hearing loss may be decided. In February 2013, March 2013, and April 2013, the Veteran submitted additional lay statements in support of his claim. The RO received these statements following their issuance of an October 2012 statement of the case, but did not review this new evidence in a subsequent supplemental statement of the case prior to certification of the appeal to the Board in May 2013. The Veteran consistently reports that his hearing loss is related to his tinnitus. Service connection for tinnitus was granted in the June 2012 decision on appeal; but service connection for hearing loss was denied on a direct basis, without adjudicating the issue of secondary service connection. The December 2011 VCAA notice only addresses the elements necessary to establish service connection on a direct basis. The Board finds that the Veteran should be afforded proper notice as to the elements of secondary service connection under Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, the June 2012 VA examination is inadequate without an opinion addressing secondary service connection for bilateral hearing loss as caused or aggravated by service connected tinnitus. The June 2012 VA examiner diagnosed tinnitus and hearing loss for VA purposes as defined at 38 C.F.R. § 3.385;however, she failed to discuss the Veteran's probable exposure to acoustic trauma as a Military Policeman as a possible contributing factor in the development of hearing loss. Further, the Veteran has consistently reported that he never actually received a separation audiological examination. The VA examiner's opinion relying on this separation audiogram to the exclusion of the Veteran's probable in-service noise exposure to hazardous noise based on his military occupational specialty cannot be said to be adequate. The Board also notes that the Veteran's service treatment records show normal right ear hearing at entrance into service in April 1965. However, the separation audiogram in April 1967, presuming it is reliable, shows that the Veteran's hearing had dropped by 10 decibels in the right ear at 4000 HZ since the April 1965 entrance audiological testing. The June 2012 VA examiner failed to acknowledge or discuss this threshold shift. Also in order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.) Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with a notice letter regarding his service connection claim for hearing loss that complies with the notification requirements of the VCAA. Such letter should specifically advise the Veteran of the information and evidence necessary to substantiate his claim for service connection of hearing loss as secondary to his service connected tinnitus to include aggravation. 2. The RO/AMC should contact the Veteran regarding clarification on which VA facility provided his hearing aides, and then obtain and associate those VA treatment records with the claims file. 3. After any outstanding treatment records have been obtained, schedule the Veteran for VA examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. a. For the right ear, the examiner should provide an explanation and opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right ear hearing loss had its onset during active service or is related to any inservice disease, event, or injury, including exposure to hazardous noise as a Military Policeman. In doing so, the examiner should discuss the significance, if any, of the threshold shift in right ear hearing at 4000 HZ between the March 1965 entrance audiological testing showing normal hearing and the April 1967 separation audiological testing. b. For the left ear, the examiner should provide an explanation and opinion on whether the Veteran's left ear hearing loss clearly and unmistakably predate his April 1965 entrance into service. i. If it is determined that left ear hearing loss clearly and unmistakably predated service, the examiner should also offer an opinion as to whether it increased in severity during the Veteran's period of service from April 1965 to April 1967. The Examiner should offer as an opinion as to whether the evidence clearly and unmistakably (e.g. undebatably) demonstrates that any in-service increase was due to the natural progression of the hearing loss disability. ii. If it is determined that left ear hearing loss did not clearly and unmistakably predate service, then the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left ear hearing loss is related to (i.e. incurred in or aggravated by) service, to include exposure to hazardous noise as a Military Policeman. c. The examiner should also offer an opinion o as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service connected tinnitus has caused or aggravated his hearing loss. The examiner should offer a separate explanation and opinion for each ear. 4. 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. Specific attention is directed to the examination report. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 5. Finally, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran 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). _________________________________________________ CHERYL L. MASON 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).