Citation Nr: 1400408 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 12-04 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for lipoma to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 1969 to October 1970. The Veteran had service in Vietnam from November 1969 to October 1970. These matters come before the Board of Veterans' Appeals (the Board) on appeal from August 2010 and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefits sought on appeal. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND With respect to the claims for entitlement to service connection, remand for further development is warranted. The August 2010 VA audiological examination report indicated that the claims file contained no record of an audiological examination conducted upon the Veteran's separation from service. The examiner stated that it was unlikely the Veteran's current hearing loss and tinnitus were related to service as the Veteran did not report symptoms until 1990 and he was discharged in 1970. However, the Veteran's service treatment records contain an undated audiogram indicating a possible threshold shift in the Veteran's hearing during service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that an addendum opinion is necessary to address the undated audiogram. The July 2011 rating decision denied the Veteran's claim for entitlement to service connection for lipoma on the basis that lipoma is not associated with herbicide exposure, nor was it shown to have occurred in service. However, the Veteran's service treatment records indicate the existence of an in-service event that may be linked to the Veteran's current condition. Specifically, a July 1970 service treatment record indicates that the Veteran received treatment for a sore on his arm. VA regulation provides in pertinent part that a VA examination is necessary where the record does not contain sufficient competent medical evidence to decide the claim, but there is evidence of an in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2013). Given the aforementioned evidence, the Veteran should be afforded a VA examination to evaluate the current nature and etiology of his lipoma. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran provide or authorize the release of any relevant medical records that are not already of record. After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 2. Thereafter, the Veteran's claims file should be returned to the examiner who conducted the Veteran's August 2010 VA audiological examination for the purpose of obtaining an addendum medical opinion. If the requested examiner is no longer available, another examiner should be asked to review the claims file and answer the questions posed below. Alternatively, if a new examiner determines that another examination would be helpful, the Veteran should be scheduled for a new examination. The examination report must reflect that review of the claims folder occurred. Based on the review of the Veteran's claims file, the examiner is asked to opine on the following: a. whether it is at least as likely as not (50 percent or greater probability) that the claimed bilateral hearing loss was caused by or due to the Veteran's service. The examiner is directed to assume that the Veteran was exposed to excessive noise during service. b. whether it is at least as likely as not (50 percent or greater probability) that the claimed tinnitus was caused by or due to the Veteran's service. The examiner is directed to assume that the Veteran was exposed to excessive noise during service. The examiner should comment on the undated audiogram in the Veteran's service treatment records and address whether the results are indicative of a threshold shift during service and, if so, the significance thereof. The examiner's attention is also directed to the Veteran's September 2010 Notice of Disagreement in which he stated that he had not experienced excessive noise exposure in his job for the past 39 years. With respect to the above requested opinions, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may provide a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 3. When step 1 has been accomplished, to the extent possible, afford the Veteran an examination by an appropriate examiner, to determine the current nature and etiology of his lipoma. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Based on the review and the exam, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's lipoma had its onset in service or is otherwise related to service, to include as a result of presumed herbicide exposure therein. Review of the entire file is required; however attention is invited to the July 1970 service treatment record indicating treatment the Veteran received for a sore on his arm. A rationale for any opinion offered is requested. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claims. If the claims remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. 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). These claims 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). _________________________________________________ S.S. TOTH 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).