Citation Nr: 1339451 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-23 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The appellant served on a period of active duty for training from February 1961 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for bilateral hearing loss and tinnitus. The appellant filed a notice of disagreement with the denial of service connection for hearing loss in September 2010. A statement of the case was issued in response in June 2011, and thereafter, the appellant filed a timely VA Form 9 on the issue in August 2011. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The Board received duplicative evidence (records from Dr. H.M. dated in August 2011) from the appellant in June 2013. 38 C.F.R. § 20.1304(c) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). The appellant contends that he has bilateral hearing loss as the result of military noise exposure. On the appellant's October 2009 application for compensation benefits, he reported the onset of his hearing loss occurred in August 1960. He explained that he was assigned as a fire arms instructor in service and suffered acoustic trauma as a result of exposure to weapons firing. In a subsequent October 2009 statement, the appellant maintained that he sustained hearing damage on the rifle ranges in 1959 and 1961 during summer camp at Fort Riley, Kansas when he was a Reserve Officer Training Corps (ROTC) cadet, and in 1961 at Fort Benning, Georgia, and Fort Leonard Wood, Missouri. As a point of clarification, the Board notes that service personnel records show that the appellant served in the Army Reserves from August 1960 to February 1961, followed by service on a period of active duty for training in the Army from February 1961 to August 1961, and then he resumed service in the Army Reserves from August 1961 to August 1964. Thus, the only period for which the appellant may be considered entitled to receive compensation benefits is the period the appellant served on active duty for training from February 1961 to August 1961 notwithstanding the appellant's report of onset of hearing loss prior to that period. See 38 U.S.C.A. § 101(2) (West 2002) (providing that a "veteran" is an individual who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable); 38 U.S.C.A. § 101(24) (providing that "active service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty). The appellant's enlistment and separation examination reports, including the results of audiometric testing, for his period of active duty for training are of record. The appellant underwent a VA audiological examination in January 2010. The VA examiner opined that the appellant's hearing loss was less likely as not caused by or a result of military related acoustic trauma. The examiner noted that the appellant's July 1961 exit examination documented normal hearing at separation. The examiner maintained that the appellant's military occupational specialty [infantry unit commander] likely exposed him to some high risk noise but service treatment records did not indicate that this had a permanent negative impact on his hearing. The examiner observed that all hearing tests in the service treatment records documented normal hearing, and service treatment records were negative for indications of complaints and/or treatment of hearing loss and tinnitus. The examiner noted that the appellant had a significant history of post military occupational noise exposure (farming) which might account for his current hearing loss and reported tinnitus. The opinion provided by the examiner is clear. The Board, however, recognizes that a claimant may establish direct service connection for a hearing disability that initially manifests several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley, 5 Vet. App. at 164. Thus, the Board finds that the examiner should also specifically address whether any portion of the appellant's current bilateral hearing loss is otherwise etiologically related to in-service noise exposure on a delayed or latent theory of causation. Accordingly, the examination report must be returned to the examiner to address this question. The record further reflects that the appellant was mailed a VCAA letter in October 2009. The Board finds that the appellant should be sent another VCAA letter that details the evidence necessary to substantiate a claim based on injury incurred or aggravated during a period of active duty for training. Lastly, in the appellant's September 2010 notice of disagreement, he claimed that he "tried to get help earlier in [his] life from [the VA], but was denied." The record reflects that the current hearing loss claim is an original one. If it is the appellant's contention that he sought treatment at a VA facility for his hearing loss at some point prior to September 2009 (the date VA treatment records in the claims file show he was evaluated for complaints that included hearing loss), then VA should procure these records. See 38 U.S.C.A. § 5103A(b) (West 2012); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Send the appellant another VCAA letter that provides him notice of the elements necessary to substantiate a claim based on injury incurred or aggravated during a period of active duty for training. 2. Ask the appellant to identify all VA facilities from which he received treatment for his bilateral hearing loss, including the facility he "tried to get help [from] earlier in [his] life" as referenced in his September 2010 notice of disagreement. Obtain any identified VA treatment records not already of record. All efforts to obtain VA records should be fully documented. The VA facility must provide a negative response if records are not available, and notice to the appellant of inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 3. Return the January 2010 VA audiological examination report along with the claims file and a copy of this remand to the examiner for an addendum. While the appellant's July 1961 exit audiogram was normal, the examiner is asked to provide an opinion with supporting rationale on whether it is at least as likely as not (50 percent probability or greater) that any portion of the appellant's bilateral hearing loss is otherwise etiologically related to in-service noise exposure during the appellant's period of active duty for training from February 1961 to August 1961 on a delayed or latent theory of causation. If the examiner is unable to provide an opinion without a resort to speculation, then a thorough explanation as to why an opinion cannot be rendered should be provided. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. The examiner must provide a supporting rational for the opinion provided. If is determined that another examination is necessary such should be scheduled. 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the appellant and his representative should be issued a supplemental statement of the case. Consideration should be made of all evidence submitted since the issuance of the March 2013 supplemental statement of the case. The Veteran should be given an opportunity to respond before the case is returned 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. 2013). _________________________________________________ K. OSBORNE 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).