Citation Nr: 1414234 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-49 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1964 to November 1966 with subsequent reserve duty. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2009 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. While the Veteran's appeal was pending, one of his claims was granted in the field. Specifically, in a November 2010 rating decision, the RO granted service connection for right ear hearing loss. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an appellate brief dated March 2014 and an October 2008 Social Security Administration record. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issue 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 Remand is required to clarify a VA opinion regarding whether the Veteran's left ear hearing loss was aggravated during service. In a February 2010 statement, the Veteran asserted that his hearing loss began from exposure to artillery while serving in the reserves. In September 2010, the Veteran was provided with a VA examination for bilateral hearing loss. There the examiner opined that it was less likely than not that the Veteran's left ear hearing loss had been permanently aggravated by military service because he did not experience a significant threshold shift at any frequency upon separation and because he had a history of civilian noise exposure. However, because the service treatment records appear to indicate some left ear threshold shift at the frequencies of 2000 and 3000 Hertz, further explanation is warranted. In a January 1964 pre-induction examination, audiological testing at 2000 and 3000 Hertz was 10 decibels (dB) and 25 dB, respectively (service treatment records prior to October 31, 1967 were recorded in ASA units. All results described here have been converted to ANSI units). A December 1964 entrance examination showed 15 dB at both frequencies and a November 1966 separation examination showed 20 dB at 2000 Hertz but did not test 3000 Hertz. Again, the Veteran asserts that his hearing loss occurred during his reserve service, and in a December 2010 VA Form 9, he specifically stated that it occurred in 1967. A June 1973 National Guard entrance examination reveals that at 2000 and 3000 Hertz, the left ear showed 40 dB and 100 dB, respectively. Comparing these results with the highest noted results in active duty (20 dB at 2000 Hertz; 25 dB at 3000 Hertz), shows a change of 20 dB at 2000 Hertz and 75 dB at 3000 Hertz. The examiner's addendum opinion should address this evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007). Moreover, the exact dates of the Veteran's reserve duty, especially any active duty for training, should also be clarified and any outstanding reserve records should be obtained. Additionally, there may be outstanding Social Security Administration records. Although it appears that the Veteran is in receipt of Social Security benefits due to his age, an October 2008 Social Security document indicates that the Veteran had a "disability onset date" of July 1980. Any outstanding Social Security Administration records relating to the Veteran's hearing loss should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who has treated him for his left ear hearing loss at any time since separation from active duty. The Veteran should also be asked to clarify the exact dates of his reserve and National Guard duty, to include active duty for training periods. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file, and verify and obtain any outstanding reserve and/or National Guard records. If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. The Social Security Administration should also be contacted, and all medical records associated with the Veteran's claim for benefits from that agency should be obtained and associated with the claims file. If the AMC/RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After completing #1 and #2, above, and after any additional records are associated with the claims file, forward the entire claims file to the examiner who prepared the September 2010 VA opinion or, if that examiner is unavailable, to another suitably qualified VA examiner. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, reserve treatment records, post-service medical records and lay statements. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. If additional examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's preexisting left ear hearing loss was aggravated while in active service or reserve service. In rendering an opinion, the examiner should specifically address the apparent changes at 2000 and 3000 Hertz during the period between separation from active duty in November 1966 to the June 1973 examination. 4. After the development requested has been completed, the AMC/RO should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. After completing any additional development deemed necessary, readjudicate the claim of entitlement to service connection for left ear hearing loss. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).