Citation Nr: 1752948 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-31 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a compensable rating for hemorrhoids. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1972 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2011 and February 2013 rating decisions of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. A June 2011 rating decision denied service connection for bilateral hearing loss. The Veteran filed a timely notice of disagreement (NOD) in August 2011, but it was not accepted by the RO because it contained the wrong decision date. The Board finds that a wrong decision date noted in an NOD is not a fatal defect. The Veteran clearly stated that he disagreed with the substance of the June 2011 rating decision, and it was timely received. He subsequently filed another claim of service connection for hearing loss in August 2012, and the RO issued a statement of the case (SOC) in September 2013 curing any due process defect regarding the issuance of a SOC. He then properly filed a Form 9 perfecting his appeal. Therefore, the Board finds that the appeal regarding hearing loss disability is before the Board on appeal of the June 2011 rating decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND At the September 2017 Travel Board hearing, the Veteran testified that in 1974 and 1975, shortly after his discharge from service, he sought treatment for hepatitis at the Lebanon, Pennsylvania and Coatesville, Pennsylvania VA medical centers. Records of such treatment are not associated with his claims file. As initial records of treatment for hepatitis may contain pertinent information, and because VA treatment records are constructively of record, the e records must be sought. On April 2011 VA audiology examination, the examiner opined that the Veteran's current bilateral hearing loss was unrelated to his service. The examiner explained that the Veteran's hearing was within normal limits on service separation examination and provided no additional rationale. (Notably, she acknowledged that exposure to noise trauma in service was highly probable given the Veteran's infantry MOS.) Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Therefore, the opinion is not adequate for rating purposes and a further opinion is necessary. At the September 2017 Travel Board hearing, the Veteran testified that his hemorrhoids have worsened in severity. In light of the length of intervening period since he was last examined by VA (in May 2012, more than 5 years ago) and the allegation of worsening, a contemporaneous examination to assess the disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete outstanding clinical records of all VA evaluations or treatment the Veteran has received for hepatitis C (i.e., records of which are not already associated with his file) to specifically include records from the Lebanon and Coatesville VAMCs for the period from December 1974 to December 1975. If such records sought are unavailable, the reason for their unavailability must be noted in the record (i.e., they did not exist or have been destroyed). 2. The AOJ should arrange for the Veteran's record to be forwarded to the April 2011 examiner (or another audiologist) for review and a supplemental advisory opinion regarding the likely etiology of his hearing loss disability. Based on a review of the record, the examiner should provide an opinion that responds to the following: Please identify the likely etiology for the Veteran's hearing loss disability. Noting that the absence of a hearing loss disability in service is not fatal to a claim of service connection for hearing loss, is it at least as likely as not (a 50% or better probability) that the hearing loss is related to the Veteran's service (and acknowledged exposure to noise therein)? The provider must include rationale with the opinion. If the hearing loss is determined to be unrelated to service, the provider should identify the etiology for the hearing loss considered more likely (and explain why that is so). 3. The AOJ should also arrange for a proctology examination of the Veteran to assess the current severity of his hemorrhoids. The entire record must be reviewed by the examiner in conjunction with the examination and any tests or studies deemed necessary must be completed. The examiner must be provided a copy of the schedular criteria for rating hemorrhoids (i.e., 38 C.F.R. § 4.114, Code 7336). Based on a review of the record and examination of the Veteran, the examiner should report all findings necessary to allow for rating the disability under the schedular criteria, noting specifically the presence or absence of symptoms that would warrant a compensable rating. 4. Then the AOJ should arrange for any further development suggested by additional evidence received (e.g., if indicated, an addendum medical advisory opinion from the August 2011 VA hepatitis C examiner which considers any newly obtained records), and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK 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).