Citation Nr: 1543609 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 10-06 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for inner ear balance problems. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to the benefits sought. The Board also notes that in October 2013, the agency of original jurisdiction denied service connection for posttraumatic stress disorder; vasomotor instability, facial flushing and hyperhydrosis; scars of the face and neck; peripheral neuropathy; sleep apnea; coronary artery disease; hypertension; and special monthly compensation based on the need for aid and attendance/housebound status. In correspondence in March 2014 within a year of the rating decision, the Veteran submitted a Notice of Disagreement regarding the denials. Typically, when there has been an initial RO adjudication of a claim and a Notice of Disagreement has been filed as to its denial, the appellant is entitled to a Statement of the Case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). However, in this case, in response to the Veteran's NOD, the RO issued an April 2014 letter acknowledging the NOD and explaining the different appeal options. The Veteran thereafter submitted additional evidence and asked for a decision review officer to review the appeal. Thus, as the RO has acknowledged receipt of the NOD, and further action remains pending at the RO, this situation is distinguishable from Manlincon, where a NOD had not been recognized. As the RO is addressing the NOD, no action is warranted by the Board at this time. In July 2015, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing. A copy of the transcript has been associated with the claims file. In addition to the paper claims file, a review of the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) was conducted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that he has hearing loss, tinnitus and inner ear balance problems associated with trauma in service, including when a grenade went off during a night infiltration course by his head. See July 2015 transcript. The Veteran has not yet been afforded a VA examination to determine the nature and etiology of his claimed disabilities. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran submitted several private opinions including an October 2009 opinion from Dr. A.H., and an April 2014 opinion from Dr. A.H. These clinicians opined that the Veteran's hearing loss was as likely as not due to service, and Dr. A.H. opined that the Veteran's tinnitus was also as likely as not due to service. They did not however address the inner ear balance problems and it remains unclear whether the Veteran has such a disorder and, if so, whether such is manifested by hearing loss and tinnitus. The Veteran has testified in July 2015 that he was participating in a night infiltration course had a grenade off by his ear and has had ringing in his ears and hearing loss since then. He is competent to report that he experienced a grenade explosion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Finally, the Veteran's wife testified that a VA medical center (VAMC) doctor at the VAMC in Salisbury stated that some of his ear problems could be related to the surgery he had on his jaw in service in 1971. Service treatment records confirm this surgery. Therefore, upon remand the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed bilateral hearing loss, tinnitus, and inner ear balance problems. See McLendon, supra. The Board notes that the Veteran applied for Social Security Administration (SSA) disability benefits. It does not appear, however, that the RO attempted to obtain the administrative decision and the records upon which SSA relied in reaching its decision. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Those records should be requested, and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA treatment records including any records of treatment at the VA facility in Salisbury dating from approximately 1971. See BVA hearing transcript, p. 19 (Veteran testified that he saw a physician at the Salisbury VA in the 1970s or 1980s concerning whether his jaw surgery could have contributed to the claimed disabilities). 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed pursuant to 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss, tinnitus, and inner ear balance problems. The claims folder and this Remand must be provided to and reviewed by the examiner and the examination must reflect that such a review was undertaken. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should address whether the Veteran currently has an inner ear disability manifested by balance problems, dizziness and staggering. See July 2015 BVA hearing testimony. If so, the examiner should address whether such disability is manifested by hearing loss and/or tinnitus and also offer an opinion as to whether it is as likely as not (a 50 percent probability or greater) that the Veteran's inner ear balance problems began in service or are etiologically related to active service, to include as related to an injury (including acoustic trauma) and/or his 1971 jaw surgery. If the hearing loss and/or tinnitus are not manifestations of an inner ear disorder, the examiner must offer an opinion as to whether it is as likely as not (a 50 percent probability or greater) that the Veteran's hearing loss and tinnitus began in or are etiologically related to active service, to include as related to an injury (including acoustic trauma) and/or his 1971 jaw surgery. In doing so, the examiner's attention is invited to the Veteran's competent testimony that he sustained acoustic trauma to his ears when a grenade went off during a night infiltration course. See July 2015 hearing. In addition, a September 2008 VA ENT medical record notes that the Veteran has pulsatile tinnitus which is altered with head turning. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not 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 serve as 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). 4. Readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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 2014). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).