Citation Nr: 1613056 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 13-28 669A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) from May 27, 1981, to August 19, 1981; from June 27, 1982, to August 3, 1982; from June 4, 1983, to June 18, 1983; and from August 18, 1984, to September 1, 1984, in the U.S. Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the appellant's case. A review of the documents in the Virtual VA file reveals documents that are duplicative of the evidence in the VBMS file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant has contended that his bilateral hearing loss was caused by firing weapons during live fire training during ACDUTRA as an infantryman. With respect to his service, the appellant has contended that the AOJ did not account for active duty or two weeks of summer training for live fire exercises. He noted that he completed a M60 Machine Gun course in September 1983, which was not documented in the June 2011 rating decision. In addition, he noted that he participated in other live fire training exercises that were not accounted for in the rating decision. Therefore, on remand, the AOJ should verify any additional periods of military service, including the type of service, and obtain any outstanding records from any periods of service identified. In addition, the Board notes that an April 1981 enlistment audiogram showed high frequency hearing loss in the right ear and normal hearing in the left ear. In his December 2011 notice of disagreement, the appellant contended that his hearing was normal when he entered the Marine Corps Reserve in May 1981. He stated, "My induction physical shows a slight high frequency loss in my right ear[;] however[,] I feel that the hearing test was flawed as there was so much ambient noise coming from the right side of the test environment[.] I could not concentrate or hear soft sounds at that time." The appellant was afforded a VA examination in February 2011 in connection with his claim. The examiner opined that the appellant's left ear hearing loss was at least as likely as not caused by noise in service, based on the reported date of onset and significant military noise exposure. She noted that the appellant's right ear hearing loss was a preexisting condition, as evidenced by an enlistment examination audiogram. A subsequent VA medical opinion was obtained in April 2011 to determine whether or not the appellant's 36 days of ACDUTRA aggravated his hearing loss. The VA examiner noted that an April 1981 enlistment examination showed hearing within normal limits for the left ear and high frequency hearing loss in the right ear. He indicated that private treatment notes dated in August 2002 showed treatment for swimmer's ear with bilateral sensorineural hearing loss with the left ear worse than the right ear. He also noted private otolaryngology notes that suggested that the appellant's bilateral sensorineural hearing loss was most likely due to noise exposure. The VA examiner opined that the appellant's current bilateral hearing loss was less likely as not related to his ACDUTRA service. He provided the following rationale for his opinion: This opinion is based on [the appellant's] fairly significant right ear asymmetric hearing loss prior to his [ACDUTRA] service, the time elapse of [over] 20[] years before the symptoms were reported which were suggested to be aggravation from swimmer's ear, as well as the left ear being worse than the right ear. It is this provider's opinion that it the military service noise exposure had been the causative factor of the current hearing loss th[e]n the right ear, which was already damaged prior to [ACDUTRA] would have continue[d] to suggest the asymmetry present prior to [ACDUTRA] and that the left ear, which is currently significantly worse than the right ear, would not have the current configuration at the noise exposure, unless it was some traumatic event, would have affected both ear[s] and if the traumatic event (no evidence of such) had occurred during his military service th[e]n the problems that are present today would have been identified long before a 20 year lapse in time as reported by the records included for review. In support of his claim, the appellant submitted a private medical opinion dated in December 2011. The private otolaryngologist indicated that the appellant was last evaluated in March 2005 when it was determined that he had a high frequency sensorineural hearing loss, which was bilateral and symmetrical. The physician indicated that the appellant's profile was consistent with acoustic overexposure, which the appellant associated with military noise exposure. The physician also noted that the appellant subsequently returned for evaluation of further hearing deterioration, particularly noticeable in the left ear. He stated, "Interval deterioration of hearing since 2005 is at this time unaccounted for, is unrelated to noise exposure[,] and unrelated to any service connected disability claim. This is now under further investigation." The Board finds that a remand is necessary to obtain a clarifying opinion that is fully responsive to the remand directives below. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the appellant and request that he identify any additional periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) that were not listed in the introduction of this remand. The AOJ should then contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the appellant's unit, or any other appropriate entity, to request the appellant's complete service treatment records and service personnel records from his period of service in the Marine Corps Reserve from 1981 to 1987. The AOJ should also determine whether the appellant served on any additional periods of active duty, ACDUTRA, or INACDUTRA. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2) , the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of the attempts to locate his records as well as any further action to be taken. 2. After completing the foregoing development, the AOJ should refer the appellant's claims file to the April 2011 VA examiner, or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss. An additional examination of the appellant should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the electronic claims file, including the information that the appellant has submitted and the December 2011 private otolaryngolist's opinion. The examiner should convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison. (Prior to November 1967, service departments used ASA units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units.) It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. 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. It should also be noted that the appellant is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that any current left ear hearing loss manifested in or is otherwise related to any period of active duty, ACDUTRA, or INACDUTRA, including any noise exposure therein. The examiner should also state whether the appellant's preexisting right ear hearing loss was aggravated by any period of active duty, ACDUTRA, or INACDUTRA, including any noise exposure therein. In so doing, he or she indicate whether there was an increase in the severity of the preexisting right ear hearing loss during service, and if so, whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. In rendering the opinions, the examiner should address the December 2011 private medical opinions submitted by the appellant, as well as the private treatment notes associated with the record, that suggest that the appellant's current hearing loss was caused by military noise exposure. The examiner should also address private treatment notes related to treatment for swimmer's ear in 2002. The examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J.W. ZISSIMOS 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).