Citation Nr: 1800208 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-25 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a perforated left ear drum sustained during a July 2008 ear examination performed at the VA Medical Center (VAMC) in West Roxbury, Massachusetts. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to July 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is of record. In a January 2010 rating decision, the RO denied the claim of entitlement to compensation under 38 U.S.C. § 1151 for a perforated left ear drum sustained during a July 2008 ear examination performed at the VA Medical Center (VAMC) in West Roxbury, Massachusetts. The Veteran filed a timely notice of disagreement that same month. Although the AOJ issued a statement of the case (SOC) in March 2013, it did not address this issue. As the AOJ has not yet provided the Veteran with an SOC, the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). The appeal is remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets further delay, remand is necessary for additional development. The Veteran asserts that he has developed a bilateral hearing loss disability due to exposure to acoustic trauma during his military service. In his various lay statements during the appeal, the Veteran has been consistent in reporting that his hearing loss began during service and has continued since. VA treatment records from July 2008 (prior to his filing of a claim for service connection) note the Veteran reporting in-service noise exposure and hearing loss since. During his Board hearing before the undersigned, the Veteran reported slowly progressive hearing loss in both ears which began after being exposed to machine gun fire and aircraft noise during service. The Veteran has also asserted a lack of occupational noise exposure post-service. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In assigning probative value to a medical opinion, a central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion and review of the claims file does not automatically render an opinion persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Here, VA examiners in April 2009 and June 2015. opined that it was less likely than not that the Veteran's hearing loss was a result of military noise exposure, as his hearing was normal upon service separation. The Board notes that the Veteran's military occupational specialty (MOS) was a Machine Gunner. He has also stated that he was exposed to aircraft and helicopter noise while serving on the flight deck of the U.S.S. Tripoli, which is confirmed by his service personnel records. Thus, the Board finds his statements of having been exposed to acoustic trauma to be credible and consistent with the circumstances of his military service. 38 U.S.C. § 1154 (2012); 38 C.F.R. § 3.304(d) (2017). Moreover, the Veteran is currently service-connected for tinnitus due to in-service noise exposure. Neither examiner addressed the Veteran's assertions of in-service noise exposure and his reports of progressive hearing loss since. Moreover, the April 2009 examiner, in providing a positive nexus opinion that tinnitus was related to in-service noise exposure, also opined that the tinnitus was a symptom of his hearing loss. As such, the Board finds these opinions to be of limited probative weight, particularly the conflicting rationales of the April 2009 examiner. Thus, an addendum opinion is necessary, so that the examiner may expressly confirm consideration of the Veteran's MOS and his assertions that his hearing loss progressed since service and an absence of post-service occupational or recreational noise exposure. The Board acknowledges that the earliest treatment reports of record for the Veteran's hearing loss claim begin in July 2008, more than three decades after his separation from service. The Veteran has consistently asserted during the course of his appeal, however, that he sought medical treatment for hearing loss immediately following service at the Boston, Massachusetts VAMC and from a private physician, but that treatment records from both sources were destroyed. Lastly, as noted in the Introduction, the RO denied the claim of entitlement to compensation under 38 U.S.C. § 1151 for a perforated left ear drum sustained during a June 2008 ear examination in a rating decision dated January 2010. The Veteran filed a timely notice of disagreement that same month. Although the AOJ issued a statement of the case (SOC) in March 2013, it did not address this issue. As the AOJ has not yet provided the Veteran with an SOC on this issue, it too must be remanded. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Issue a statement of the case addressing the issue of compensation under 38 U.S.C. § 1151 for a perforated left ear drum sustained during a July 2008 ear examination performed at the VAMC in West Roxbury, Massachusetts. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The Veteran is advised that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his timely appeal. 3. Obtain an addendum opinion as to the etiology of the Veteran's hearing loss. If the examiner determines that an additional examination is necessary before rendering an opinion, such should be scheduled. Upon review of the claims file and, if necessary, examination of the Veteran, the examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current hearing loss disability that had its onset during military service or is otherwise causally or etiologically related to his military service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. In offering the opinion, the examiner should consider the Veteran's lay statements regarding experiencing acoustic trauma in-service consistent with his MOS as a Machine Gunner, that his hearing loss began and gradually progressed in the years following service, and that he was not exposed to occupational noise exposure since separation. The examiner should also explain why the Veteran's current bilateral hearing loss is or is not merely a delayed response to his in-service noise exposure. If the examiner relies on the audiometric findings at separation in offering a negative opinion, the medical significance of such findings should be addressed as the Board is precluded from making medical findings. A clear rationale for all opinions must be provided. 4. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the Veteran's hearing loss claim. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). These claims 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).