Citation Nr: 1800607 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-12 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hepatitis B. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1992 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2017, the Veteran presented sworn testimony during a personal hearing in Washington D.C., which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. At the October 2017 hearing, the Veteran submitted additional evidence directly to the Board. At that time, he waived local consideration of this evidence; the waiver is documented in the Board hearing transcript. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND The Veteran asserts entitlement to service connection for bilateral hearing loss and hepatitis B, which he contends were incurred during his active duty service. For the reasons set forth below, the Board finds that these matters must be remanded for additional evidentiary development. Initially, the record demonstrates that the Veteran served in the U.S. Air Force Reserves from July 1997 to July 2000 and the U.S. Army Reserves from May 2003 to September 2003. Unfortunately, there is no indication that the AOJ attempted to obtain the Veteran's service treatment records from his periods of Reserve service. Accordingly, these matters should be remanded in order for the AOJ to take the appropriate steps to obtain these records and associated them with the Veteran's claims file, to the extent possible. With respect to the claimed bilateral hearing loss, the RO denied the Veteran's claim because the medical evidence of record was not demonstrative of hearing loss sufficient for VA compensation purposes pursuant to 38 C.F.R. § 3.385. However, the Veteran has not been afforded a VA examination with respect to his pending bilateral hearing loss claim and has recently submitted medical evidence suggestive of worsening hearing loss symptomatology. See the audiograms dated December 2015 and September 2017. This issue must therefore be remanded in order to provide the Veteran with a VA audiology examination to address outstanding questions of diagnosis and nexus. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). As to the claimed hepatitis B, the Veteran was diagnosed with hepatitis B following a liver biopsy in February 2011. See the VA treatment records dated March 2011. He asserts that he incurred hepatitis B during his military service. See, e.g., the Board hearing transcript dated October 2017. To this end, he has directed the Board's attention to a notation of "Hep" in a September 1993 in-service Medical Surveillance Questionnaire. The Veteran has not been afforded a VA opinion as to the pending hepatitis B claim. As such, the Board finds that this matter should be remanded in order to obtain a VA medical opinion as to the etiology of the diagnosed hepatitis B. See Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (2017). Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records custodians in order to obtain the Veteran's treatment records from his service in the U.S. Air Forces Reserve from 1997 to 2000 and the U.S. Army Reserve in 2003. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. 2. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Arrange for the Veteran to undergo a VA audiology examination, by an appropriate professional, to address his claim for service connection for bilateral hearing loss. For each ear, the audiologist should identify the auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. With respect to any diagnosed hearing loss sufficient for VA compensation purposes, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: a) had its onset during service, b) was manifested to a compensable degree within the first post-service year; or c) is otherwise related to in-service injury or disease, to particularly include in-service noise exposure. In addressing the above, the examiner must consider and discuss all pertinent in- and post-service evidence, including the Veteran's lay assertions. In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. Arrange for an examiner, with appropriate expertise, to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the diagnosed hepatitis B had its onset in service or is otherwise medically related to in-service injury or disease, to include the September 1993 in-service notation of 'Hep' as referenced above. In addressing the above, the examiner must consider and discuss all pertinent in- and post-service evidence, including the Veteran's lay assertions. In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. Thereafter, readjudicate the claims on appeal. If a benefit sought remains denied, the Veteran should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).