Citation Nr: 1802610 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-43 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and His Spouse ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1975 to May 1978 and in the Navy from June 1978 to June 1980. The Veteran also had additional service in the Air Force Reserve. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case was most recently remanded in February 2017 for additional development. In a letter dated October 2017, the Veteran was notified that the VLJ who presided over his February 2012 Board hearing was no longer with the Board. He was provided the option of requesting a new hearing before a current Board member, but advised that if he did not respond within 30 days, the Board would assume he did not want another hearing. As of this date, the Veteran has not responded. As such, the Board will proceed accordingly. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND At the outset, the Board recognizes that the Veteran's appeal has been pending since 2010 and that there have been previous remands for additional development. While the Board regrets the delay involved in remanding this case again, it is also of the opinion that further development is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159. In February 2017, the Board most recently remanded this case for the AOJ to obtain a VA opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. In accordance with the remand, the AOJ procured a May 2017 VA addendum opinion, in which the VA examiner opined that it was less likely than not that the Veteran's hearing loss/tinnitus was the result of military acoustic trauma. The examiner indicated that being exposed to military noise did not always result in permanent acoustic trauma. The examiner indicated further that the Veteran did not have a current hearing loss disability for VA purposes. She also explained that the Veteran's in-service shift was not considered a significant shift in hearing and there was no evidence of permanent military acoustic trauma. The Board finds that remand is warranted for a new VA examination and opinion. In pertinent part, the VA examiner's opinion was based on the inaccurate factual premise that the Veteran did not have a current hearing loss disability. The Board notes that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, despite the fact that the May 2017 VA examiner found no current hearing loss disability, the record clearly shows evidence of current hearing impairment (pursuant to 38 C.F.R. § 3.385) during the appeal period. See May 2014 VA Examination and February 2012 Private Audio Evaluation. Accordingly, remand is warranted for a new VA examination and opinion. The Board also finds that remand is required as there may be outstanding evidence relevant to the issues on appeal. In this regard, the record indicates that the Veteran had additional service in the Air Force Reserves following his active duty service. See April 2015 Correspondence. Nevertheless, the AOJ has not otherwise attempted to verify whether the Veteran's Reserve service included periods of Active Duty for Training (ACDUTRA) or Inactive Duty for Training (INACDUTRA). Moreover, while it appears the AOJ attempted to acquire the Veteran's reserve medical/personnel records, the claims file is silent as to a response regarding the whereabouts of such records, and the AOJ has not issued a formal finding as to their unavailability. Accordingly, remand is warranted for the AOJ to attempt to acquire the Veteran's reserve medical/personnel records and, if they are unavailable, issue a formal finding in accordance with 38 C.F.R. § 3.159(e). The AOJ must also undertake any development necessary to verify the dates of any such periods of ACDUTRA or INACDUTRA. If any additional periods of service are identified, the new VA medical opinion should include consideration of whether the Veteran's current bilateral hearing loss and tinnitus are otherwise related to such service. Accordingly, the case is REMANDED for the following actions: 1. Issue notice advising the Veteran of the criteria for service connection based on any period of ACDUTRA or INACDUTRA in the Air Force Reserves which qualifies the Veteran for basic eligibility for veteran's benefits. Advise the Veteran of the definitions of the types of service and the types of evidence he may submit to substantiate his claim based on both types of service. 2. Contact the National Personnel Records Center (NPRC), the Defense Finance Accounting Service (DFAS) and/or any other appropriate source to verify any period of ACDUTRA or INACDUTRA. Note that retirement point sheets are not adequate for this purpose. All records and/or responses received should be associated with the claims file. 3. Request all Reserve service treatment/personnel records and associate them with the claims file. Any negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 4. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. If these records are unable to be obtained, appropriately notify the Veteran and his representative pursuant to 38 C.F.R. § 3.159 (e). 5. After development is completed as directed above, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his bilateral hearing loss and tinnitus. The Veteran's claims file, including this remand, should be made available for review by the examiner. The AOJ should also, to the extent possible, provide the examiner with a list of the Veteran's verified periods of ACDUTRA and INACDURA, including a determination by the AOJ as to whether the Veteran was examined at the time of entry into any such periods of service. The VA examiner is advised that the record contains a diagnosis of right and left sensorineural hearing loss that meets VA regulations for hearing impairment under 38 C.F.R. § 3.385. See May 2014 VA Examination and February 2012 Private Audio Evaluation. The VA examiner must offer an opinion as to the following: a. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's bilateral hearing loss and/or tinnitus is caused by or related to his conceded acoustic trauma incurred during active duty service. In rendering the above opinion, the examiner must specifically consider and discuss the Veteran's military noise exposure as a result of his military occupational specialty (MOS) and the threshold shift from his June 1978 entrance examination to his April 1980 separation examination. b. If the Veteran is found to have periods of ACDUTRA and/or INACDUTRA but the AOJ is unable to identify distinct date ranges for the Veteran's periods of ACDUTRA/INACDUTRA, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's bilateral hearing loss and/or tinnitus was the result of or aggravated (permanently worsened beyond its natural progression) by any period of ACDUTRA and/or INACDUTRA. c. If the Veteran is found to have periods of ACDUTRA and/or INACDUTRA and the AOJ provides a summary identifying distinct periods of ACDUTRA and/or INACDUTRA the examiner must respond to the following: i) If an entrance examination is present which includes no notation of hearing loss and/or tinnitus for the period of ACDUTRA or INACDUTRA, does the evidence of record clearly and unmistakably (undebatable) show that the Veteran had a hearing loss disability and/or tinnitus prior to his entry to any such period of ACDUTRA or INACDUTRA? If yes, does the evidence clearly and unmistakably (undebatable) show that the Veteran's hearing loss and/or tinnitus was not aggravated (permanently worsened beyond its natural progression) by his in-service acoustic trauma? ii) For any period of ACDUTRA or INACDUTRA for which there is not an entrance examination present, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current bilateral hearing loss and/or tinnitus was the result of, or aggravated by, in-service acoustic trauma during that period of ACDUTRA or INACDUTRA? The examiner is advised that the Veteran is competent to report his symptoms and history and that such report must be acknowledged and considered in formulating any opinion. The examiner must provide a rationale for all opinions offered. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 6. Ensure that the requested actions have been completed (to the extent possible) in compliance with this REMAND. If a medical opinion is deficient, it must be returned to the examiner for necessary corrective action, as appropriate. 7. After the requested development has been completed, the AOJ shall review and readjudicate the claims on appeal. If the decision is adverse to the Veteran, he and his representative shall be furnished a Supplemental Statement of the Case and provided with the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. No action is required of the Veteran until he is notified by VA. However, he is again advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a VA medical examination, may impact the determination made. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) are to be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). 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).