Citation Nr: 1637650 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 12-11 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Appellant served on active duty for training (ADCUTRA) from February 1972 to June 1972 and from June 19, 1976 to July 3, 1976, with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In June 2013, the Appellant testified at a formal RO hearing before a decision review officer (DRO). A transcript of the hearing has been associated with the Appellant's VA claims file. He was then scheduled to appear at the RO to have a videoconference hearing with a Veterans Law Judge in November 2013; however, he failed to appear for said hearing. He has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2015). In an October 2014 Board decision, the claims were remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a February 2015 supplemental statement of the case (SSOC). The Appellant's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action, on his part, is required. REMAND The Appellant asserts that he suffers from bilateral hearing loss and tinnitus as a result of his military service. See, e.g., the DRO hearing transcript dated June 2013. After having considered the matter, and for reasons expressed immediately below, the Board finds that further development is required before the claims may be finally adjudicated. Service connection may be granted for any disability resulting from disease or injury incurred or aggravated in the line of duty while performing active military service. Active military service includes active duty, any period of active duty for training during (ACDUTRA) which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. Service connection may also be granted for any disability resulting from an injury in the line of duty while performing inactive duty training (INACDUTRA) or for an acute myocardial infarction, cardiac arrest or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. 101 (24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). In this case, the Appellant contends that he incurred hearing loss and tinnitus, while training on rifles and other weapons, during his verified period of ACDUTRA from February 1972 to June 1972. To this end, it is undisputed that the Appellant underwent basic training and advanced infantry training (AIT) from February 1972 to June 1972. As such, the Board does not dispute the Appellant's contentions of exposure to weapons noise during such training. With respect to the Appellant's contentions of on-going hearing loss and tinnitus symptomatology, the Board observes that a December 1976 quadrennial examination noted that he had "[d]effective hearing acuity, low frequency." The Appellant has not been afforded a VA examination with respect to the pending claims; thus, there remain questions as to current diagnosis and etiology of the claimed hearing loss and tinnitus disabilities. A remand for an appropriate VA examination should therefore be accomplished in order to address these outstanding questions. See Charles v. Principi, 16 Vet. App. 370 (2014); see also 38 C.F.R. § 3.159(c)(4) (2014) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Also, on remand, any pertinent records of ongoing treatment should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Appellant has recently received. The Board is particularly interested in records of any pertinent treatment or evaluation that the Appellant may have received at a VA health care facility at any time. All such available documents should be associated with the claims file. 2. Then, schedule the Appellant for a VA audiological examination to determine the etiology of his currently diagnosed bilateral hearing loss and tinnitus. The claims file, including a copy of this Remand, should be made available to and reviewed by the examiner. All necessary studies, including audiological testing, should be performed. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should obtain a complete history of the Appellant's audiological complaints. The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed bilateral hearing loss and/or tinnitus had its(their) onset in service or is(are) otherwise related to the Appellant's active duty for training or due to an injury incurred during a period of inactive duty for training while serving in the U.S. Army Reserves. The examiner should also address the Appellant's lay testimony regarding his hearing acuity and tinnitus symptomatology, including his application for compensation in May 2010 where he claimed hearing loss and tinnitus began in 1980. The medical reasons for accepting or rejecting the Appellant's statements regarding continuity of symptoms since service should be set forth in detail. The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered. If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Appellant and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. No action is required of the Appellant until notified by the RO; however, the Appellant is advised that failure to report for any scheduled examination may result in denial of the claims. 38 C.F.R. § 3.655 (2015). 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).