Citation Nr: 1752578 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-02 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a psychiatric disorder, claimed as depression. 4. Entitlement to service connection for a right shoulder disorder. 5. Entitlement to service connection for a left shoulder disorder. 6. Entitlement to service connection for a low back disorder. 7. Entitlement to service connection for a neck disorder. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The appellant served with the U.S. Army Reserve from December 1979 to December 1985 with an initial period of active duty training (ADT) from February 1980 to June 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appellant testified at a videoconference Board hearing held in January 2017. A transcript is of record. The Board notes that the appellant expressed her desire to withdraw her appeal regarding the issues of entitlement to service connection for depression, a bilateral shoulder disorder, a low back disorder ,and a neck disorder and entitlement to TDIU. Normally, a withdrawal is effective when received pursuant to 38 C.F.R. § 20.204(b)(3) (2017). However, in January 2017 the appellant appeared for a hearing before the undersigned VLJ at which point there was some question as to the issues on appeal. As the appellant believed the issues she attempted to withdraw were still in appellate status, the Board finds that they are still on appeal and before the Board. See generally Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the evidence currently of record is insufficient to decide the claims on appeal and that further evidentiary development is therefore needed before a decision can be reached on the merits. The appellant asserts that her hearing loss and tinnitus are directly related to excessive noise exposure during her period of ADT in 1980. She argues that she was exposed to noise from during basic training while qualifying with rifles and hand grenades. Her DD-214 lists her military occupational specialty (MOS) as corrections specialist, a specialty likely associated with at least some noise exposure. It also shows that she qualified M-16 "H/G" and P-38 badges. In this case, the Board finds that her report of military noise exposure is competent and credible, given that the circumstances of the reported noise exposure are likely consistent with her duties during basic training. 38 U.S.C.A. § 1154(a) (West 2014). Accordingly, the Board finds that in-service noise trauma is established. However the appellant has not been afforded a VA examination regarding her claimed hearing loss and tinnitus and VA has a duty to assist her in substantiating his claims by obtaining competent medical opinions addressing the etiology and onset of these claimed disabilities. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board cautions that the law and regulations do not specifically require complaints of, or treatment for, hearing loss during service in order to establish service connection, so an assertion that the appellant had normal hearing for VA purposes at during service and at discharge will not be adequate. With regard to the remaining claims, the appellant testified at her January 2017 hearing, that she developed shoulder, back and neck pain as a result of running, marching, and carrying heavy backpacks during basic training. She also attributed her symptoms to the "amount of work and stress" that she was placed under during service. She also contends that the pain from her musculoskeletal complaints and the constant and loud tinnitus cause sleep deprivation, which in turn has led to her depression. Although the available service personnel records show the appellant was discharged from the Ready Reserve in December 1985, there is no indication of whether she may have had additional periods of active duty training (ADT) or inactive duty training (IDT) after 1980 and thus would presumably include additional periods of ADT or inactive duty training (IDT) However it does not appear that the AOJ attempted to verify any periods of service that the appellant may have performed after that time. In view of the evidence and the appellant's assertions, the AOJ should verify the dates and nature of all Reserve service and obtain any service treatment records that are not duplicates of the service records already associated with the claims file. The Board also notes that the appellant appears to be in receipt of Social Security Administration (SSA) benefits. So while on remand, the AOJ should obtain copies of the SSA decision granting disability benefits and the supporting medical records upon which the award was based as these records may be relevant to the claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally since the appellant's disability picture is unresolved, the claims for service connection for depression and TDIU are inextricably intertwined with the service connection claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of these claims must be deferred until after completion of the actions requested below. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant a 38 U.S.C.A. § 5103(a)-compliant notice letter pertaining to her service connection claims. Such letter should specifically advise her of the specific regulations governing service connection where there is reserve component service, such as ADT or IDT as well as the criteria for establishing entitlement to service connection on an a secondary basis. 2. Verify any periods of Reserve service, including any actual periods (specific dates) of ADT and IDT after 1980. Service records only providing Reserve points are not helpful in this regard. All verified periods of service and responses received must be documented and associated with the claims file. If, for any reason, this information is not verifiable, the appellant is to be so informed and the inability to verify the ADT and/or IDT must be noted in the claims file. Also, obtain all service treatment records for such verified periods of service, including reports of entrance, separation, and periodic/annual physical examinations not currently in the claims file. 3. The AOJ should include a summary in the claims file that delineates the appellant's verified periods of active duty, ADT, and IDT requested above, to the extent possible. 4. Obtain the appellant's SSA records, including the medical evidence used to determine disability eligibility. If no SSA records are available, it should be so noted in the claims file. 5. With any necessary identification of sources by the appellant, obtain all outstanding VA or non-VA treatment records pertaining to treatment of the appellant for hearing loss, tinnitus, shoulder problems, back problems, neck problems or depression since her discharge from ADT in June 1980 that are not already associated with the claims file. 6. Then schedule a VA audiology examination. The electronic claims file must be made accessible to the examiner for review of the case. The audiologist should elicit from the appellant a detailed history of any noise exposure, both during and after service, as well as the onset and progression of relevant symptoms. All indicated tests and studies, including audiological testing, should be conducted, and the results included in the examination report. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). The audiologist should provide numeric interpretation of the audiogram and should set forth numeric values for the pure tone thresholds at 500, 1000, 2000, 3000, and 4000 Hz, as well as the speech recognition scores (Maryland CNC test). Based on the appellant's history, and comprehensive review of the claims file, the audiologist should provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the appellant's hearing loss and tinnitus are causally related to her period of ADT from February 1980 to June 1980. The audiologist must presume that the appellant was exposed to hazardous noise during service. If it is the opinion of the examiner that the appellant's bilateral hearing loss and tinnitus are not related to in-service noise exposure, an explanation must be provided to fully explain why the current symptoms are not consistent with the in-service noise exposure or why such exposure is not at least a "contributing factor." The audiologist should discuss the likelihood that the appellant's current hearing loss is due to post-service intercurrent causes wholly unrelated to her military service, such as her post-service employment as a corrections officer or age-related issues. Note: The examiner is reminded that VA law and regulations do not preclude service connection for post-service hearing loss just because hearing was within normal limits at the time of separation from service. In other words, noting that hearing loss did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 7. After the above action is completed, if the decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 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 H. O'Shay 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) (2016).