Citation Nr: 1752216 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-25 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for skin cancer due to radiation exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from November 1952 to November 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Although the Veteran initially requested a Board hearing via videoconferencing, the Veteran withdrew his hearing request. See July 2017 Correspondence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on these issues on appeal. Bilateral Hearing Loss In a September 2017 Appellate Brief, the Veteran suggests that his hearing loss might have worsened and that he has not had an audiogram for his hearing since his last VA examination in April 2012. In this regard, a contemporaneous VA examination is required to assess the current severity of the Veteran's bilateral hearing loss. See 38 C.F.R. § 3.327(a) (2017); See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that a contemporaneous examination of the Veteran should have been ordered because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, a remand is warranted for the RO to schedule the Veteran for a VA examination on his bilateral hearing loss. Tinnitus The Veteran also claims service connection for tinnitus. Specifically, the Veteran reported that while he was on active duty, he was aboard a ship for approximately six months in which planes were taking off and landing on the flight deck, and guns were being fired. He further stated that he was not provided with hearing protection and that he had a ringing in his ear, which went away and came back. He stated that he did not report his because he thought it would get better. An April 2012 VA examination for tinnitus, however, reflects that the Veteran did not report recurrent tinnitus and accordingly did not provide a nexus opinion on tinnitus. The Board finds that this VA examination is inadequate to decide the claim, as it does not account for the Veteran's lay testimony about the ringing of his ears in service, and rather, it reported that the Veteran did not report a recurrence of tinnitus, thereby failing to provide a nexus opinion. Accordingly, a new VA examination is required for the Veteran's claimed tinnitus. Skin Cancer The Veteran and his wife have provided several statements about the onset and treatment of the Veteran's skin cancer, which they assert, are the result of atomic bomb testing in the area where he was situated during active service. See October 2012 Correspondence from Veteran (suggesting that his skin cancer is due to atomic bomb testing, and that his skin cancer did not appear until 1957, after he separated from active service; and that his doctor treated him for it until his death); See also July 2014 Statement from Wife, M.G. (stating that the Veteran's dermatologist, Dr. A.B., treated the Veteran for skin cancer on the face and that the doctor stated that his cancer could have been caused by the atomic bomb testing); see, too September 2014 Statement from Wife, M.G. (stating that the Veteran had skin cancer in his arms and face when she married him in 1966; the Veteran told her that he first had skin cancer taken off his face when he was 24 years old in 1958, by a doctor in Pascagoula, Mississippi, and that in 1961, the Veteran had more cancers removed from his face by another doctor in Eugene, Oregon; and that thereafter, his dermatologist, Dr. A.B. took the cancer off his face in 1966 and continued to do so until the physician's death in 2004, at which point, the Veteran started to receive treatment from another doctor, Dr. W.). Furthermore, in a Radiation Risk Activity Information Sheet, the Veteran reported that he was aboard the USS Hancock as a seaman from March to April 1954 in Bikini Atoll; he witnessed three atomic bomb testing in which the operation was known as "Operation Castle." See August 2015 Radiation Risk Activity Information Sheet. He also reported that he was in proximity of approximately 3 miles away from the center of ground zero for the testing of Operation Castle. Id. He further indicated that he initially remained in the explosion area for approximately 7 hours, and moreover, a damp mist came over the ship, which gave him "odd feeling." As the Veteran claims radiation exposure which resulted in a diagnosis of skin cancer after his service, there is no indication that the Veteran was provided with a dose estimate of his exposure to radiation. See 38 C.F.R. § 3.311(a) 2017 (requiring the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree with any applicable presumptive period specified under 38 C.F.R. §§ 3.307 or 3.309, and where it is contended that the disease is a result of ionizing radiation in service). Therefore, a remand is required for the development of a dose assessment, as well as the forwarding of all records pertaining to his radiation exposure in service to the Under Secretary for Health, for further consideration. See 38 C.F.R. § 3.311(a) and (b). Summarily, based on the foregoing reasons, a remand is required for further evidentiary development on all the issues on appeal. 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. Obtain all outstanding private and VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a new VA audiological examination to determine the severity of his service-connected bilateral hearing loss. The VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. 3. Schedule the Veteran for a new VA audiological examination to determine the presence, and if any, the etiology of any diagnosis of tinnitus. a. Provide an opinion on whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus is related to his active service. b. Consider and discuss all lay statements from the Veteran. All disclosures and statements from the Veteran must be construed as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. c. If it is determined that there is another likely etiology for any diagnosis of tinnitus, so indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. The RO must undertake all development under 38 C.F.R. § 3.311 (2017), with respect to the Veteran's claim of radiation exposure. This includes the following: a. Contact the appropriate office of the Department of Defense, including the Defense Threat Reduction Agency (DTRA), for dose data pertaining to the Veteran's radiation dose in service based upon his proximity, approximately 3 miles away, to the center of ground zero for the testing of Operation Castle. b. Then, forward all information pertaining to the Veteran's radiation exposure in service, including the DTRA dose data, service records, statements and testimony regarding radiation exposure, and any other pertinent information, to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies. (If a specific estimate cannot be made, a range of possible doses should be provided.) c. Then, refer the case to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c), who may request an advisory medical opinion from the VA Under Secretary of Health under 38 C.F.R. § 3.311 (b), (c)(1). d. Thereafter, undertake any additional steps that are necessary for the development of the service connection claim for skin cancer. 5. After ensuring that the above-mentioned actions have been undertaken, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response from the Veteran or his representative. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ BRADLEY W. HENNINGS 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) (2017).