Citation Nr: 1754841 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-18 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran served on active duty October 1961 to August 1962. The Veteran served in the Air National Guard from June 1960 to April 1972. This matter comes from the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide notice and assistance to claimants. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). When VA receives a complete or substantially complete application for benefits, VA must provide notice to the claimant and his or her representative concerning the evidence and information needed to substantiate the claim. The notice required depends on the general type of claim the Veteran has made. See e.g. Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). It appears that VA did not provide the required notice to the Veteran concerning his claim for service connection for a bilateral hearing loss and tinnitus disabilities. II. VA Examination The Veteran underwent a VA hearing loss and tinnitus examination in October 2014. The examiner opined that the Veteran's current hearing loss is less than likely than not caused by, aggravated by, or related to his military service noise exposure. The examiner reasoned that the Veteran had a preexisting hearing loss disability with an unknown etiology. The examiner further reasoned that the Veteran did not relate his hearing loss to military service. The examiner stated that records showed no significant changes in hearing thresholds greater than normal measurement variability during active military service. The examiner opined that the Veteran's threshold clearly and unmistakable remained unchanged throughout the service period. The examiner noted that the Veteran had questionable audiograms in the Air National Guard. The Board finds that the October 2014 examiner's rationale is not adequate for adjudication. In this regard, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. 3.304 (b) (2017). Additionally, with regard to the appellant's periods of ACDUTRA and INACDUTRA, the United States Court of Appeals for Veterans Claims (Court) has determined that "an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation." Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also 38 U.S.C. §§ 101 (2), 101(24) (2012); 38 C.F.R. §§ 3.1 (d), 3.6(a) (2017). This limitation is also true for inactive duty for training. Id.; Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Court further concluded in Paulson that the presumption of soundness is not applicable to claimants serving on ACDUTRA (or by implication INACDUTRA). Paulson, at 470. See also Hines v. Principi, 18 Vet. App. 227, 239-40 (2004); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010), Acciola v. Peake, 22 Vet. App. 320, 324 (2008). To establish aggravation under 38 U.S.C. § 1153 (2012) an active duty for training claimant must establish both that (1) "there was an increase in disability as to a preexisting injury or disease" and (2) that such an increase "was beyond the natural progress of that injury or disease." Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). See also Smith v. Shinseki, 24 Vet.App. 40, 48 (2010). The basis of the 2014 VA examiner's opinion that the Veteran's hearing loss preexisted service is unclear particularly since the Veteran has multiple periods and types of service. In June 1960, the Veteran's service entrance examination for the Air National Guard did not note hearing loss although only whispered voice testing was conducted; however, his July 1960 separation from ACDUTRA examination appears to show some abnormal audiological findings which do not appear to be repeated on discharge and reenlistment examination in May 1962 or periodic examination in February 1965. A September 1961 active duty entrance examination shows what appears to be hearing loss although such is not listed in the summary of defects and diagnoses. Further, an April 1970 Arkansas Air National Guard enlistment examination shows a hearing loss pursuant to 38 C.F.R. § 3.385 (2017) although an H-1 physical profile was reported at that time. Because the Veteran has a period of active duty for which the presumption of soundness applies as well as periods of ACDUTRA and INACDUTRA, for which it does not, the examiner's opinion requires clarification. Further, because there are several audiograms dated between January 1, 1967 and December 31, 1970, and it is not clear for all of them whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the examiner should consider the recorded metrics under both standards where appropriate, relying on the unit measurements most favorable to the Veteran's appeal. The Board notes that the October 2014 examiner stated that the Veteran had questionable audiograms; however, the examiner did not explain which audiograms were questionable and why. Further, explanation is needed in this regard. Finally, the Board notes that the examiner did not address a service treatment record note concerning the Veteran's ears. The Veteran's service treatment records indicate that in June 1960, the Veteran had a right ear full of wax and a left ear infection. It appears the examiner did not take into account this treatment record. For the reasons stated above, an addendum opinion is required to clarify the examiner's opinion. Before an addendum opinion is rendered the RO should ensure that the examiner is provided with a statement of verification of all periods of active duty training (ACTDUTRA) and inactive duty training (INACDTURA). III. Tinnitus The outcome of the claim for tinnitus could be affected by the results of development ordered on remand; therefore, the issue of entitlement to service connection for tinnitus is inextricably intertwined with the issue of service connection for bilateral hearing loss, and adjudication of entitlement to service connection for tinnitus should be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 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. Provide the Veteran with the requisite notice for service connection for hearing loss and tinnitus. Provide the Veteran with forms to identify and authorize VA to acquire any post-service treatment records. 2. After the above development is completed, obtain an addendum opinion from the examiner who performed the October 2014 VA examination, or if unavailable an appropriate examiner, to determine the etiology of the Veteran's hearing loss. The AOJ should provide the examiner with the Veteran's dates of active duty and specific dates of ACDUTRA and INACDUTRA. For audiograms dated between January 1, 1967 and December 31, 1970, and where it is not clear whether such thresholds were recorded in ASA units or ISO-ANSI units, the examiner should consider the recorded metrics under both standards where appropriate, relying on the unit measurements most favorable to the Veteran's appeal. The examiner should opine: a). whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss disorder began in (or was aggravated by) a verified period of ACDUTRA or INACDUTRA between June 1960 and April 1972? b). Is there clear and unmistakable (undebatable) evidence that hearing loss preexisted the Veteran's active duty service from October 1961 to August 1962, and clear and unmistakable evidence that the preexisting hearing loss was not aggravated (worsened in severity beyond the natural progress of such disorder) during that time? c). If the answer to question (b) is that the condition increased in severity, then is it "at least as likely as not" (50 percent or greater probability) that any current hearing loss disability is due to an inservice injury, event or disease during the period of active service from October 1961 to August 1962? d). The examiner should clarify and explain his conclusion that the Veteran's Guard audiograms in service were questionable. e) The examiner should address the significance, if any, of the June 1960 service treatment record concerning a left ear infection and right ear wax build up. The examiner should also address the Veteran's July 2014 lay statement that he was on the flight line and did not wear ear protection. f) The examiner must provide a complete rationale for the opinion stated. If the examiner cannot provide the requested opinions without resorting to speculation, the examiner should indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). S. L. Kennedy 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).