Citation Nr: 1605178 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 09-22 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran had active service from April 1975 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for bilateral hearing loss. In April 2011, the Veteran testified before the undersigned at a Travel Board hearing at the RO; a transcript of that hearing is of record. This case was previously before the Board in October 2011, at which time the Board remanded the claim further development, including for the provision of a VA audiological examination. This appeal was processed electronically using the Veterans Benefits Management System (VBMS). Additionally, a review of the Virtual VA electronic case management system reveals additional documents pertinent to the present appeal. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the further delay another remand is required to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. Initially, the Board notes that, in conjunction with his claim for service connection for bilateral hearing loss, the Veteran submitted an Authorization and Consent to Release Information Form (VA Form 21-4142), indicating that his former employer, the United States Postal Service (USPS) was in possession of medical records that were potentially pertinent to his claim and requesting that VA attempt to obtain those records on his behalf. See March 2008 VA Form 21-4142. However, it does not appear that the RO took any action concerning this. Importantly, VA has a duty to assist the Veteran in obtaining records from all Federal agencies. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) and (3). See also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (VA's duty to assist specifically includes requesting information from other Federal departments or agencies if potentially pertinent to the claim before VA). Accordingly, because such records were identified by the Veteran as relevant to his claim, because the RO failed to make any attempt to obtain the identified records, and because any such records are potentially pertinent to the Veteran's claim, a remand is required to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Efforts to obtain these USPS records must be made until they are either obtained or it is determined they do not exist or that continuing efforts would be futile. 38 C.F.R. § 3.159(c)(2). See also Cullin v. Shinseki, No. 12-1018, 2013 WL 1789296 (April 29, 2013) (non-precedential) (in which the Court of Appeals for Veterans Claims determined that the Board had not complied with the duty assist because it did not obtain Postal Service employment records for a Veteran claiming entitlement to increased ratings in part because his disabilities interfered with his employment). The Board additionally notes that, as a VA Form 21-4142 expires 180 days after it is signed, the authorization form currently of record is no longer valid. See March 2008 VA Form 21-4142 (noting that the authorization and consent granted by virtue of the form "will automatically end 180 days from the date you sign and date the form"). Accordingly, the Veteran should be notified that he must complete and sign a new VA Form 21-4142 to allow VA to request these records on his behalf. Additionally, as the case is being remanded, the Board finds that the Veteran should be afforded a new and contemporaneous VA audiometric examination. In this regard, although the Veteran has been provided several VA audiometric examinations throughout the pendency of this claim, including in February 2008, May 2010, November 2011, and January 2015, the results of the puretone threshold speech recognition testing have not reached a level recognized as disabling by VA. See 38 C.F.R. § 3.385 (2015) (For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.). Despite this, the January 2015 VA examining audiologist diagnosed the Veteran with mild bilateral high frequency sensorineural hearing loss, albeit not a level to "meet the VA criteria to be considered a disability." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss). Additionally, the examiner linked the Veteran's auditory pathology to his active service, noting the "documented threshold shifts" in the right ear during his active service. Although the examiner determined that the left ear hearing loss was less likely than not related to the Veteran's active service, this opinion is inadequate, as it is based solely upon the lack of evidence of auditory pathology in the Veteran's service treatment records and fails to adequately consider the Veteran's competent reports of in-service acoustic trauma and resultant auditory symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). In this regard, the absence of evidence of an auditory pathology in the service treatment records does not preclude service connection. See Hensley, 5 Vet. App. at 159 (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Moreover, the results of the VA examination reports of record reflect a progressive worsening of the Veteran's puretone threshold levels since he was initially examined in conjunction with this claim in February 2008. See February 2008 VA Examination Report (reflecting a puretone threshold average of 11.25 decibels on the right and 13.75 decibels on the left); November 2011 VA Examination Report (reflecting a puretone threshold average of 14 decibels on the right and 14 decibels on the left); January 2015 VA Examination Report (reflecting a puretone threshold average of 16 decibels on the right and 19 decibels on the left). Accordingly, considering the possibility that the Veteran's hearing loss has progressed to a level that would be considered a disability for VA purposes, on remand, a new VA audiological examination should be conducted to determine the nature and likely etiology of the Veteran's diagnosed bilateral hearing loss. Additionally, given that service connection is in effect for tinnitus and chronic rhinitis, the VA examiner should additionally address whether the Veteran's service-connected conditions likely caused or aggravated any identified bilateral hearing loss. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Finally, as the claim is being remanded, any recent records of VA treatment should also be obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2015); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his bilateral hearing loss disability. He should be advised that the March 2008 Authorized Release form (VA Form 21-4142) for medical records held by the United States Postal Service (USPS) is no longer valid, and that he must complete and sign a new authorization form should he want VA to attempt to obtain those records, and/or any other relevant evidence, on his behalf. A copy of this notification must be associated with the claims folder. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the VBMS virtual claims file. Pursuant to 38 C.F.R. § 3.159 (c)(2), VA has a duty to make as many requests as are necessary to obtain relevant records from a Federal department or agency. Efforts to obtain such records should only be ended if VA concludes that the records either do not exist or that further efforts to obtain them would be futile. 2. Make arrangements to obtain any outstanding VA treatment records and associate them with the electronic claims file. 3. After the above development has been completed, schedule the Veteran for a VA audiological examination, conducted by a state-licensed audiologist. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the hearing examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list. After reviewing the file, eliciting a full medical history from the Veteran, conducting an examination of the Veteran, and performing any clinically indicated diagnostic testing, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, including specifically military noise exposure. In providing this opinion, the examiner should consider and address the Veteran's competent account of experiencing in-service acoustic trauma and resultant auditory symptomatology during and since his active service. Additionally, if a direct relationship to service is not found, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss was either (a) caused by, or (b) aggravated by the service-connected tinnitus and/or chronic rhinitis. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Then, review the claims file and ensure that all requested development actions have been completed in full. If any VA examination report or opinion does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 5. Finally, after completing any other development that may be indicated, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 2014). _________________________________________________ P.M. DILORENZO 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).