Citation Nr: 1337742 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-15 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to November 1993 and from November 1993 to April 1994. The Veteran also served in the United States Marine Corps Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In January 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Board notes that the Veteran also appealed the denial of a claim for service connection for PTSD and a low back disability which was denied in the same October 2009 rating decision that denied service connection for bilateral hearing loss. In a rating decision in January 2011, the RO granted service connection for PTSD and in rating decision dated in April 2011, the RO granted service connection for the low back disability as a disability of the lumbar spine, awarding effective dates and rating the disabilities. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for PTSD and the claim of service connection for the low back disability. In a rating decision dated in January 2010, the RO denied the claims of service connection for a right eye visual problem, service connection for breathing problems, and service connection for chronic fatigue syndrome (CFS). The Veteran filed a notice of disagreement in May 2009. After the RO issued a statement of the case dated in May 2011, the Veteran did not perfect the appeal by filing a substantive appeal. As the RO has not taken any action to indicate to the Veteran that these claims remain on appeal, the requirement that there be a substantive appeal is not waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). In a similar manner, the RO denied service connection for a cervical spine disability in September 2011, but after it also issued a statement of the case in August 2012, it appears the Veteran did not perfect an appeal of that issue by filing a substantive appeal. Again, the RO has not taken any action to indicate to the Veteran that the claim of service connection remained on appeal. 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 In November 2010, a VA audiologist reviewed the file and provided an opinion that it was less likely than not that the Veteran's current hearing loss disability was related to service. The audiologist did not provide a medical basis as to why the fact that the Veteran's hearing levels were normal at separation (at the end of either period of active duty) and no hearing loss was noted until 2009 demonstrated that hearing loss was less likely than not a result of in-service noise exposure. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The examiner did not explain how the in-service test results precluded service connection for a hearing loss that had either a sudden onset or gradually progressed over the years. A rationale based solely on the absence of hearing loss during service is insufficient. See Hensley v. Brown, 5 Vet. App. 155 (1993). In addition, the examiner's report included audiometric results from at least three puretone audiometric testing examinations, June 2005, November 2009, and April 2010. While the VA audiologist set out the threshold numeric results in the opinion, and there is an outpatient note interpreting the result of the November 2009 evaluation, the complete test with numerical results, other findings and test results, and the Veteran's history and symptoms are not contained in the file before the Board. It unclear to the Board where VA audiologist obtained the information about the 2005 evaluation as VAMC records in the file start in August 2008 and end in February 2010. The Veteran testified he does not remember having his hearing tested in 2005. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). A remand is therefore necessary to obtain the missing records. The RO is to request, or determine the unavailability, of documentation setting forth the numeric results at each of the required frequencies of 1000, 2000, 3000, and 4,000 Hertz , and the speech recognition scores of the Maryland CNC test (if done). 38 C.F.R. § 4.85. Finally, the Veteran has submitted records from treatment he received after separation by an Air Force unit, the 75th Medical Group. As this suggests the Veteran has sought medical care from providers other than VA, the Board has determined that the Veteran should be provided the opportunity to identify and provide medical records regarding hearing loss from any non-VA medical provider. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records from the Salt Lake City VAMC and any other associated outpatient clinic from separation in April 1994 to the present, including the complete reports of any puretone audiometric testing results and speech recognition scores from June 2005, November 2009, and April 2010. If the records are not found, no longer exist, or otherwise unavailable, a written negative reply is required. All attempts to obtain these records should be documented in the file. 2. Ask the Veteran to submit records from or provide the full and correct names and contact information and authorize VA to obtain the records from all non-VA medical providers, including any branch of the armed services that treated or evaluated the Veteran for his hearing that have not previously been provided. The RO/AMC should attempt to obtain these records once authorization is obtained. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 3. After the foregoing record development is completed, provide the Veteran a VA examination with an appropriate examiner to determine if the Veteran has a current hearing loss and its etiology. The claims file should be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has a bilateral hearing loss disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, to specifically include noise exposure to mechanical cooler equipment and gunfire during active duty, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. When providing an opinion, the examiner should consider the Veteran's statements as credible regarding his exposure to cooler equipment connected to radar equipment and to gunfire exposure. The examiner is asked to specifically discuss the Veteran's testimony and evidence of noise exposure in service. Any negative opinion should not be based solely on the absence of hearing loss in service. 4. After the development requested is completed, readjudicate the claim for service connection for bilateral hearing loss. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).