Citation Nr: 1336820 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-28 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Nobrega, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from October 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. 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 Veteran is alleging that he has developed a bilateral hearing loss disability and tinnitus due to his active military service. Specifically, he has put forth the contention that the claimed disabilities are attributable to acoustic trauma allegedly experienced during his time of service. The Veteran's contentions regarding noise exposure are supported by the information contained in his DD-214. The Veteran was an aircraft mechanic. He spent significant time on an aircraft carrier. By the nature of his occupation during service, the Board concedes that the Veteran was exposed to continuous noise from aircraft. After separation from service, the Veteran has had several occupations including working as a janitor and as an electrician. Post-service records include a September 2010 VA examination report which indicated mild to moderately severe sensorineural hearing loss in both ears. It is noted that these findings confirm that the Veteran currently has a hearing loss disability within the meaning of 38 CFR §3.385. The Veteran is competent to report experiencing tinnitus, and this is confirmed in the September 2010 VA examination. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). With regard to etiology, the September 2010 examiner stated in an addendum later that month and confirmed in December 2010, that hearing loss was not consistent with "noise exposure". The examiner reported that the Veteran's hearing was "found to be within normal limits at the time of enlistment and separation." The examiner concluded that the "shift appear[ed] to be consistent with tester/equipment differences. It [was] also consistent with the testing being completed in a non sound proof environment." The examiner then concluded that, in her opinion, it was not at least as likely as not that hearing loss and tinnitus were related to military service. The September 2010 VA examiner, to include opinions contained in her associated addendums, did not take into account these private records. Indeed, she simply based her opinion on a lack of documentation in service treatment records as to why there was no nexus between noise exposure and current hearing loss and tinnitus. While she stated that the current results "were not consistent" with acoustic trauma, she did not provide a reasoning for such a conclusion. Accordingly, additional development is necessary. Indeed, as the Veteran has demonstrated that he experiences a bilateral hearing loss diagnosis and tinnitus, and as the record includes confirmation of exposure to acoustic trauma in service, the potential for a nexus between service and the current diagnosis is raised. As the record does not contain an adequate medical opinion addressing etiology, it is necessary that the claims be remanded so that development can occur. In this regard, the Board must conclude that the 2010 VA opinion, to include associated addendums, are not adequate to resolve the issue on appeal. Simply, the opinions are based solely on a lack of documentation in the Veteran's service treatment records and there are no associated rationales supporting the reasons as to why the examiner did not feel tinnitus and bilateral hearing loss were related to service. Thus, further development is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that in the Supplemental Statement of the Case issued in September 2012, the RO stated that it reviewed Albuquerque, New Mexico VA Medical Center (VAMC) treatment records electronically through August 2012. However, after a preliminary search of the "Virtual VA" system and a review of the claims file, these records were not available. A search of the "Virtual VA" system includes records dated to 2011; however, there are no records past this time from any VA facility. As the Board is on notice from the SSOC that these records exist, VA must obtain them prior to an adjudication of the claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA clinical records, pertaining to bilateral hearing loss and tinnitus, from 2011 to the present, to include records of treatment at the Albuquerque, New Mexico VA Medical Center as well as those from the VA facility in Durango, Colorado. Should no records be found after an exhaustive search, annotate the record to reflect this. The Veteran should also be encouraged to submit any medical records he believes supports his claims. 2. Schedule the Veteran for a comprehensive VA audiology examination with an examiner other than the one who conducted the September 2010 examination if possible. In this regard, it is asked if it is at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hearing loss diagnosis and tinnitus had causal origins in service to include as a result of exposure to loud aircraft noises. Specifically, the examiner should consider the Veteran's current complaints of hearing loss and ringing in his ears, in-service noise exposure, and the reliability of the whispered voice assessment at service separation when coming to a conclusion. A rationale must accompany any conclusion reached in the examination report (a mere statement regarding the lack of contemporaneous documentation of hearing difficulties at the time of in-service acoustic trauma is not a sufficient rationale). 3. Following the above-directed development, re-adjudicate the Veteran's claims. Should the claims remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative and forward the claim to the Board for adjudication. 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. 2013). _________________________________________________ MICHELLE L. KANE 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) (2013).