Citation Nr: 1336244 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-36 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2013, the Veteran testified at a video-conference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. A review of the Virtual VA paperless claims processing system was conducted. The issues of neuropathy in both legs, chronic migraines and a lung condition related to Agent Orange exposure have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, these issues were mentioned by the Veteran in the March 2013 video-conference hearing. See hearing transcript at page 14. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 While the Board regrets further delay, after review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2012); 38 C.F.R. § 3.303(a) (2013). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a current diagnosis of hearing loss sufficient to be considered a disability for VA compensation purposes. See June 2005 private audiological test. He contends that he experienced acoustic trauma during his military service that he claims has caused bilateral hearing loss. The Veteran's DD-214 notes that his military occupational specialty (MOS) was listed as postal clerk. The Veteran contends that while as a postal clerk stationed in Vietnam, he drove a "3/4 ton truck" thousands of miles over an "unsecured route" and "frequently received incoming fire". The Veteran further contends that he defended the perimeter of his base with a "M-60 machine gun, quad .50 Cal. Gun and the M-79 grenade launcher, many times firing within the close confines of a guard bunker". The Veteran also contends he received incoming indirect fire from mortars, which detonated "within 75 yds of my position". Finally, on the Veteran's original claim from February 2009, the Veteran contends he was also exposed to "small arms fire, incoming RPG fire, incoming mortar fire, M-60 machine gun fire, twin 40MM cannon and quad .50 cal anti aircraft gun fire" and was "on the danger-close receiving end of fire from a C-47 'Puff the Magic Dragon' flying gunship during an intense fire fight with 5000 NVA troops". In March 2013, the Veteran was afforded a hearing before the undersigned Veteran's Law Judge. At the hearing, the Veteran provided further details relating to his service and hearing loss. He reported multiple incidents where, after being attacked while on guard duty and firing guns, he "wouldn't be able to hear myself talk for two or three days after". Also in the March 2013 hearing, the Veteran stated that "in Fort Bliss, and McGregor, New Mexico, before I became a mailman, I was also the gunner on the tanks, and on the clods. So I trained on them. And then we went to Vietnam and I'd still go in battles, I still shot the guns and, you know, whatever had to be done was done, you know, to stay alive". Review of the Veteran's personnel file indicates there are other MOS numbers associated with the Veteran besides the 71F20 listed on the DD-214. These include "13F10" and "13F20", which are related to field artillery, which is the type of unit the Veteran was assigned to. The Veteran has also submitted a letter, dated September 1967, from his Battalion's Executive Officer that confirms the Veteran delivered mail over "at times, an unsecured route" and that he participated "over sixty times in base security guard". In addition, the Veteran has provided lay evidence in the form of letters from family members and friends that contend his hearing was worse when he returned from Vietnam. Finally, the Veteran has referenced the medical treatise titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" and quoted portions in support of his claim. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2013). Here, the current medical evidence establishes that the Veteran receives treatment for bilateral hearing loss. The Veteran has provided competent and credible lay testimony of in-service acoustic trauma. The question therefore remains whether the evidence indicates that there may be an association. Such an indication will be found when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has asserted that he has had symptoms of hearing loss since service and submitted lay evidence that his hearing was worse after service, as well as referenced treatise information tending to support the proposition that noise exposure can lead to hearing loss. Thus, the Board finds that the Veteran has met the guidance set forth in McLendon and the Veteran must be afforded an examination, and an opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the etiology of his hearing loss. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner is directed to assume that the Veteran was exposed to acoustic trauma during service, to include various types of weapons being fired and loud equipment being operated, although it is unknown whether he experienced actual hearing loss at that time. The examiner must provide a thorough rationale for his or her conclusion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the medical report does not include an adequate response to the specific opinion requested, it must be returned to the providing examiner for corrective action. 3. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Bethany L. Buck 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).