Citation Nr: 1340075 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-48 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1957 to March 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2012, the Veteran presented oral testimony in support of his claims before a Decision Review Officer. A transcript of that hearing has been associated with the claims file. In March 2013, the Veteran presented testimony at a video conference hearing before a Veterans Law Judge. The transcript of the hearing is associated with the claims file. These matters were previously before the Board in May 2013 when they were remanded to the RO for additional development of the evidence. This appeal was processed using the Virtual VA paperless claims processing system and VBMS. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. 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). This appeal is REMANDED to the RO at the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has bilateral hearing loss and tinnitus as the result of exposure to loud noises during active duty. Specifically, the Veteran describes that he had ringing in his ears and trouble hearing for awhile after coming off of the firing range during rifle training. He also contends that his hearing loss and tinnitus are the result of working around jet engines on the flight lines. The Veteran reports that his duties involved installing radio and radar equipment on the flight line and communication sites. He states that he was not given any hearing protection and denies any post-service recreational and occupational noise exposure. Although the dates of the Veteran's active duty service have been verified, the record shows the Veteran's service treatment records and personnel records are unavailable due to a fire that occurred at the National Personnel Records Center in July 1973. The record demonstrates that all efforts to obtain those records have been exhausted. In August 2010, the Veteran underwent VA examination in connection with his claim. The VA examiner noted that no claims file or service medical records were available for review. The VA examiner also reported that there were no VA records reporting hearing loss or tinnitus in the Veteran's VA medical records. The Veteran reported that he had not had his hearing tested since his discharge from service 49 years ago. The Veteran also stated that his hearing was poor and that he had had decreased hearing for the past 15 to 20 years that was gradually worsening. He stated that he now needed to look at a person in order to hear and understand them. The Veteran also reported ringing and hissing sounds in his head and ears for the past five years. He stated that he could not tell if it was in one or both ears. The Veteran did not associate any particular event with the onset of the tinnitus and stated that he had just begun to notice it. Examination revealed bilateral hearing loss disability for VA purposes, pursuant to 38 C.F.R. § 3.385, diagnosed as bilateral moderate sensorineural hearing loss by pure tone averages, with excellent word recognition scores for the left ear and good word recognition scores for the right ear. The VA examiner opined that given the gradual onset of hearing loss more than 30 years after discharge, and that the configuration of the loss was most consistent with presbycusis (the natural aging-related kind of hearing loss), the Veteran's present hearing loss was not caused by, the result of, or aggravated by his active military service/noise exposure. As the tinnitus the Veteran reported had its onset nearly 40 years after his discharge, the VA examiner opined it was not likely related to the Veteran's active military service. It was more likely related to his presbycusis, health issues, medication side effects, and aging of the vascular system. As such, tinnitus was not caused by, the result of, or aggravated by his active military service/noise exposure. In a September 2010 notice of disagreement, the Veteran asserted that he had misunderstood the VA examiner's questions pertaining to the onset of his bilateral hearing loss and tinnitus. The Veteran reported that he had first experienced hearing loss during service but that it had gotten to be a real problem in the last five years. With respect to his tinnitus, the Veteran stated that he could distinctly remember having ringing in his ears after coming off of the rifle range during rifle training and that his tinnitus had continually worsened over the years. In his May 2012 substantive appeal, the Veteran again reported that his bilateral hearing loss and tinnitus had their onset during active duty, but had only really become "a problem" within the last 10 to 15 years. The Veteran repeated these assertions at the March 2013 video conference hearing, stating that his bilateral hearing loss and tinnitus had been continually present since active duty. Here, the Board finds a remand is warranted to afford the Veteran an additional VA examination. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, the record shows the Veteran's claims file was not provided for review by the VA examiner. In some instances, the United States Court of Appeals for Veterans Claims (Court) has held that a failure to review the claims file renders a VA examination inadequate for rating purposes. See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 932 (1992) ("The [VA] examiner should have the Veteran's full claims file available for review.", but see Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of the claims file is not required where it would not change the objective and dispositive findings made during a medical examination). See also 38 C.F.R. §§ 4.1, 4.2 (2013). However, the Court held in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), that when VA undertakes to provide a medical examination or obtain a medical opinion, the relevant inquiry is whether "the examiner providing the report or opinion is fully cognizant of the claimant's past medical history." In this case, the VA examiner reported that she did not see any treatment for hearing loss or tinnitus documented in the Veteran's records. However, the evidence now contains records showing the Veteran sought VA treatment for hearing loss as early as November 1999 and received hearing aids in September 2001. In addition, the Veteran has clarified his statements concerning the onset and continuity of his symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). As such, the Board finds the VA examiner was not apprised of the relevant medical history of the Veteran as it pertains to his current claims. Thus, in order to satisfy VA's duty to assist, the Board finds remand is warranted in order to afford the Veteran an additional VA examination. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following actions: (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. Schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any bilateral hearing loss and tinnitus. All records from the Veteran's Virtual VA file and VBMS file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. After review of the record, to include the VA treatment records, VA examination report, and with consideration of the Veteran's lay statements pertaining to his in-service and post-service noise exposure, in-service symptoms, and symptoms since separation from service, and his wife's statements pertaining to the Veteran's symptoms, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current bilateral hearing loss is related to active duty, to include any in-service noise exposure. In addition, the examiner should give an opinion as to whether it is at least as likely as not (50 percent probability or more) that any tinnitus is related to active duty, to include any in-service noise exposure. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. A complete rationale should be provided for any opinion or conclusion expressed. 2. Thereafter, re-adjudicate the claims of entitlement to service connection for bilateral hearing loss and tinnitus. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U. R. POWELL 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).