Citation Nr: 1340737 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-06 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to June 1994, October 2001 to August 2002, October 2002 to July 2003, and from October 2009 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). At a May 2013 hearing before the Board, the issue of entitlement to service connection for a right ear disorder, to include chronic infections and bleeding due to exposure to chemicals, was raised. This issue has not been adjudicated by the RO. As such, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is required before the issues on appeal are decided by the Board. Specifically, the Veteran's complete service treatment records must be obtained and associated with the record. Moreover, a VA examination and opinion are necessary, for the reasons discussed below. The Veteran contends that his current bilateral hearing loss and tinnitus are a result of exposure to acoustic trauma coincident to his duties as an infantryman during active service, where he was exposed to live weapons fire and loud vehicles. He further contends that he has experienced ringing in his ears since service. In this regard, the Veteran's DD Form 214's indicate that he served in the United States Army National Guard from January 1994 to June 1994, October 2001 to August 2002, October 2002 to July 2003, and from October 2009 to September 2010, as an infantryman. The record does not contain service treatment records dated in 2009 through September 2010. Moreover, the record does not contain the Veteran's complete service treatment records for his first, second, and third periods of active service. As such, the Veteran's complete service treatment records must also be obtained, to include records from the United States Army Texas National Guard, as noted by the RO in a September 2010 deferred rating decision. The RO must attempt to locate these records, and associate them with the record. 38 C.F.R. § 3.159(c)(2) (2013). In addition, another VA examination is needed to determine whether the Veteran's current bilateral hearing loss and tinnitus disorders began in service or are etiologically related to service, as the October 2008 fee-based examination is not adequate for adjudicative purposes. Specifically, it is unclear to the Board as to whether the examiner reviewed the claims file, as she failed to acknowledge the lay assertions of record regarding the Veteran's in-service noise exposure and ringing in his ears since that time. Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the examiner did not discuss the report of a May 1994 separation physical examination that shows left ear hearing loss at 4000 Hertz, for VA compensation purposes. Further, although the examiner noted that the Veteran's right side tinnitus was "as likely as not" associated hearing loss, she did not provide a rationale for such opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the examiner failed to provide an opinion as to the etiology of the Veteran's current bilateral hearing loss disorder. Accordingly, another examination and medical opinion are necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's complete service treatment records for all verified periods of service. Such attempt must include a request for service treatment records from the National Personnel Records Center, as well as any other repository that would potentially store the Veteran's records pertaining to his service in the United States Army, Texas National Guard. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. After all available records have been obtained and associated with the evidence of record, the Veteran must be afforded a VA examination to determine if any hearing loss and/or tinnitus found or previously diagnosed is/are related to his military service, to include as due to acoustic trauma. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies, to include an audiological evaluation, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. Based on the clinical examination, a review of the service and post-service medical records, the Veteran's military occupational specialty, and with consideration of the Veteran's statements and his history of in-service noise exposure, the examiner must state whether any degree of the Veteran's current hearing loss and/or tinnitus is/are related to his military service, to include exposure to acoustic trauma. In providing the opinion, the examiner must comment on the Veteran's May 1994 separation physical examination report, which shows a threshold of 65 at 4000 Hertz, of the left ear. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, the RO must readjudicate the Veteran's claims, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefits on appeal remain denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs