Citation Nr: 1751358 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-09 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for cold injury residuals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to March 1961. These matters are before the Board of Veterans Appeals (Board) on appeal from a July 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In the February 2016 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issues on appeal. VA contacted the Veteran on August 1, 2017 informing him that a hearing had been scheduled for September 7, 2017. The Veteran failed to appear for this hearing and has not presented good cause for doing so. As such, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND These matters must be remanded to the AOJ to fulfill VA's duty to assist set forth at 38 C.F.R. § 3.159 (2017). Hearing Loss and Tinnitus The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus disabilities. The Veteran contends that he suffered bilateral hearing loss and tinnitus as a result of his occupation as a helicopter and tank mechanic in the Army. Based upon review of the record and the Veteran's contentions, it is conceded that the Veteran has a diagnosis of bilateral hearing loss and tinnitus. It is also conceded that the Veteran indeed had noise exposure during service as a mechanic on helicopters and tanks. The Veteran was afforded a VA audiological examination to determine the nature and etiology of his claims in July 2012. The VA examiner opined that the Veteran's hearing loss and tinnitus were not caused by or the result of military service as his hearing was within normal limits upon entrance into and separation from military service and there was not a significant threshold shift. The examiner also opined that there is no military service-related noise induced hearing pathology for which tinnitus can be medically linked. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet App. 303, 311 (2007). Inadequate examinations and opinions include those that provide insufficient supporting rationale or contain only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the examiner to consider all of the relevant evidence before forming an opinion). The Board finds the July 2012 VA examination inadequate. In this regard, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined that an examination was inadequate where the examiner did not comment on the Veteran's reports of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. In this case, the July 2012 VA examiner did not discuss the Veteran's lay assertions of in-service acoustic trauma as a helicopter and tank mechanic. Further, the examiner did not address the appropriate legal standard and provided a conclusory opinion without an adequate medical opinion. See Nieves, 22 Vet. App. 295 (2008). Therefore, a remand is necessary in order to obtain an addendum opinion that takes the Veteran's contention into consideration. The Board also notes that the examination report appears to suggest a relationship between the Veteran's hearing loss and tinnitus. As such, this issue must be remanded as well. On remand, an addendum opinion should be obtained that fully explains any conclusion reached. Cold Injury Residuals The Veteran contends that he suffers from cold injury residuals of the upper and lower extremities due to extreme cold exposure while he was stationed in Canada. Examination is warranted regarding the Veteran's claim as no VA examination has been provided to assess the nature and etiology of the Veteran's claimed cold injury residuals. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Court in McLendon observed that the third prong, which requires an indication that the claimant's disability or symptoms 'may be' associated with the established event, is a low threshold. Id. at 83. The record reflects that the Veteran was stationed in Canada from November 1957 to May 1959 where he served as a vehicle mechanic. Service treatment records do not indicate complaints or findings of frostbite or cold injury residuals to the upper or lower extremities, and his February 1961 separation examination shows normal clinical examination in all areas including his hands and feet. However, private treatment records dated January 2011 indicate that the Veteran experienced burning, numbness, and tingling in his upper and lower extremities. The private examiner diagnosed the Veteran with chronic cervical radiculopathic changes as well as sensory peripheral neuropathy and opined that the sensory neuropathic process is likely related to the cold injury/extreme exposure to cold temperatures while in service. Given the foregoing, the first three criteria for examination set forth in McClendon have been met, and there is insufficient competent medical evidence on file for VA to make a decision on the claim. Thus, the matter must be remanded for examination and opinion addressing the relationship, if any, between the claimed disability and the Veteran's service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should forward the Veteran's file to the VA examiner who furnished the July 2012 opinion (or another VA examiner if the July 2012 examiner is unavailable), for an addendum opinion clarifying the nature and etiology of the Veteran's hearing loss and tinnitus. The examiner should review all pertinent records associated with the claims file. After reviewing the evidentiary record, the examiner is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral sensorineural hearing loss was either incurred in, or is otherwise related to, the Veteran's military service. After reviewing the evidentiary record, the examiner is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral tinnitus was either incurred in, or is otherwise related to, the Veteran's military service. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the claimed residuals of frostbite of the upper and lower extremities. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify whether the Veteran has any frostbite or cold injury residuals of the upper or lower extremities; opining as to whether it is at least as likely as not (50 percent probability or greater) that any such current disability was incurred in service or is otherwise medically related to service. In providing the requested opinion, the examiner is asked to address the January 2011 private treatment records and the notations of cold injury residuals and their relation to the Veteran's service. The Veteran is considered a reliable historian inasmuch as he reports he was exposed to significant cold weather in Canada. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals