Citation Nr: 1728331 Decision Date: 07/20/17 Archive Date: 07/27/17 DOCKET NO. 11-32 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tropical fungus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and R.B.K. ATTORNEY FOR THE BOARD K. M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1971 to March 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In May 2017, the Veteran testified at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran submitted a notice of disagreement in March 2009 appealing the portion of the January 2009 rating decision denying service connection for bilateral hearing loss. He did not appeal the portion denying service connection for tropical fungus. However, he did submit new and material evidence regarding that issue within the one-year appeal period. See April 2009 lay statements from his spouse. As new and material evidence was submitted within one year of the January 2009 rating decision, that decision did not become final for the issue of entitlement to service connection for a tropical fungus and remains on appeal. 38 C.F.R. § 3.156(b). Therefore, the Board will consider the claim on a de novo basis. This appeal was processed the Veterans Benefits Management System (VBMS) paperless claims processing system. 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 During the Veteran's May 2017 hearing, he testified that he received treatment from a private physician for his bilateral hearing loss a couple of years after his discharge from service. He also stated that his hearing was tested in connection with his employment. The record was left open for sixty days following the May 2017 hearing to provide the Veteran with the opportunity to submit those additional records; however, to date, they have not been provided. As it does not appear that any attempt has been made by the RO to obtain these records, the AOJ should attempt to secure them on remand. Similarly, during the May 2017 hearing, the Veteran testified that he began receiving treatment for his tropical fungus from VA in the 1990s. However, the claims file does not contain VA treatment records from that time period. Thus, the AOJ should attempt to obtain any outstanding VA medical records. The Veteran further testified in May 2017 that Dr. C. (initials used to protect privacy) told him that his tropical fungus could be related to his military service, yet the claims file does not include treatment records from that physician. Therefore, the AOJ should also attempt to secure treatment records from that physician. The Board also notes that the Veteran was afforded VA examinations in November 2008 and March 2010 in connection with his claim for service connection for bilateral hearing loss. The November 2008 VA examiner stated that the Veteran's military noise exposure did not cause or contribute to his hearing loss because he had normal hearing at separation. Similarly, the March 2010 VA examiner opined that the Veteran's military noise exposure did not have an effect on his hearing loss. In so doing, she noted that the Veteran had normal hearing at separation. Thus, it appears that the VA examiners based their opinions on the lack of medical evidence of hearing loss in service. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was afforded an additional VA examination in April 2015, but no etiological opinion was provided. Therefore, the Board finds that an additional medical opinion is needed. In addition, the Veteran has not been afforded a VA examination in connection with his claim for service connection for tropical fungus. Although his service treatment records are negative for any complaint, treatment, or diagnosis, the Veteran and his wife have attested to symptomatology since service. A VA treatment record dated in October 2009 also documented a history of foot fungus for 36 years. The Veteran further testified at the May 2017 that Dr. C. told him that the disorder could be related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any tropical fungus that may be present. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for bilateral hearing loss and tropical fungus. A specific request should be made for medical records from Dr. C., his employer who had tested his hearing, and the private physician that he indicated treated him shortly a few years after service for his hearing loss (identified at May 2017 Board hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file, to include any records from the 1990s to the present. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing 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. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss manifested in service or within one year thereafter or is otherwise etiologically related to the Veteran's military service, to include noise exposure therein. In rendering the opinion, the examiner should 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 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 conclusion is so evenly divided that it is as medically sound to find favor of 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. Copies of all pertinent records in the Veteran's electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any tropical fungus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The Veteran and his wife have asserted that he has had symptomatology since service. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current tropical fungus manifested in service or is otherwise etiologically related to the Veteran's military service, including any symptomatology and tropical climate therein. (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 conclusion is so evenly divided that it is as medically sound to find favor of 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. Copies of all pertinent records in the Veteran's electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative 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 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). _________________________________________________ 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) (2016).