Citation Nr: 1802208 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-13 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1953 to April 1955; he served in Korea and was awarded the Korean Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board further notes that while the Veteran indicated that he was only appealing the denial of service connection for hearing loss, the RO subsequently certified the claim for service connection for tinnitus on appeal and the Veteran's representative thereafter reasserted this claim in his VA Form 646 and Informal Hearing Presentation. Consequently, the representative has relied on the RO's certification and this issue continues to be a matter for current appellate review. 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 Veteran if further action is required. REMAND The Board finds that the matters on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The RO scheduled the Veteran for a VA examination in August 2012 to address the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner's responses are inadequate to resolve the Veteran's claims. The RO obtained a VA medical opinion in August 2012 to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The VA physician conducted a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list and diagnosed the Veteran with sensorineural hearing loss. The physician noted that she could not provide a medical opinion regarding the etiology of the Veteran's diagnosis without resorting to speculation because the claims file did not contain entrance or separation records for the Veteran. The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the Veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service . . . ." Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the Veteran has a current hearing loss disability which is causally related to service. The physician further noted that she could not provide a medical opinion as to the Veteran's claim of entitlement for tinnitus because the Veteran denied he had tinnitus on two separate occasions, namely, at his January 2012 VA examination and March 2012 VA examination. The record does not contain these examinations. The VA examiner states that she reviewed the claims file. However, the Board finds that the VA examiner failed to provide an adequate VA examination. The examiner failed to specifically take into account VA's concessions, namely, that the Veteran served in an artillery unit while in service in Korea and that he suffered acoustic trauma or noise exposure during service; nor does the VA examiner consider the Veteran's statements that for years his family and friends told him that he had a hearing problem. Moreover, as was noted previously, in view of the RO's certification of this issue following its absence in the Veteran's Form 9, and the representative's conduct in reasserting this claim in the VA Form 646 and the Informal Hearing Presentation, it is apparent at least at this point in time that that the Veteran contends that he, in fact, has tinnitus. Thus, the VA examiner failed to consider all of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Because the record is inconsistent with the VA examiner's opinion a new opinion is necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record and the January 2012 and March 2012 VA examinations. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Any outstanding VA treatment records dated since January 2012 should be associated with the claims file, including the January 2012 and March 2012 examinations referenced in the August 2012 VA examination report. 2. After the above development has been completed and all records have been associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed hearing loss and tinnitus. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's lay statements, the August 2012 VA examination report, and that the Veteran served in an artillery unit while in service and that he suffered acoustic trauma and noise exposure during service. The examiner should then: (a) Provide a specific diagnosis for any current bilateral hearing loss or tinnitus. (b) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any diagnosed hearing loss or tinnitus originated during, or is etiologically related to, active duty service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After conducting any additional development deemed necessary, readjudicate the claims. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his representative, allow the appropriate time for response, and thereafter return the case to the Board, if 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). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).