Citation Nr: 1804909 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-23 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Jurisdiction is currently in the RO in Waco, Texas. In December 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the undersigned held the record open for additional 30 days to allow for submission of any additional evidence; however, no evidence was submitted during that time frame. The Board notes that additional evidence, to include a list of the Veteran's former employers that may have access to annual audiological testing results since January 1989, was added to the record after the issuance of an April 2016 supplemental statement of the case. Regardless, given that his substantive appeal was received after February 2, 2013, a waiver is not necessary. See section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. 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 regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran contends that the claimed bilateral hearing loss and tinnitus are due to service. Specifically, he reports that such hearing impairments are related to "loud noise exposure" during service "due to his job as a motor transport operator" as well as working with guns while assigned to artillery. See December 2016 Statement from the Representative; December 2016 Hearing Tr. at 3-4. He has also reported that since separation from service, "[his] hearing has gradually been going down" as documented by "DOT (Department of Transportation) physical [evaluations] [conducted] every two years." See December 2016 Hearing Tr. at 4. Military personnel records confirm that the Veteran served as a motor transport operator. See Form DD-214. The Veteran's August 1982 enlistment and separation examination reports document that he had left ear hearing loss to an extent recognized as a disability for VA purposes at those times. As for the right ear, the Veteran's service treatment records do not indicate right hearing loss for VA purposes during service, although the associated audiogram testing results indicate a number of positive threshold shifts during service for that ear. See August 1982, June 1983, and May 1986 audiogram testing results. In a January 2014 Disability Benefits Questionnaire (DBQ) report, the examiner diagnosed the Veteran with bilateral hearing loss and rendered negative nexus opinions for right and left ear hearing loss disabilities. As for left ear hearing loss, the examiner opined that "[the Veteran's] pre-existing left ear hearing loss was not exacerbated beyond that which would be considered normal progression." However, the examiner was not responsive to the relevant legal criteria for disabilities noted upon acceptance into service, namely, 1) whether there was an increase in severity in service, and if so, 2) whether there is clear and unmistakable (i.e. undebatable) evidence that such increase in severity was due to the natural progress of the condition. As for right ear hearing loss, the examiner reasoned that "there is not sufficient evidence from longitudinal studies . . . to determine whether permanent noise-induced hearing loss can develop much later in one's life time." However, the examiner did not consider the Veteran's competent report that his bilateral hearing loss has been continually worsening since service. See December 2016 Hearing Tr. at 4. A remand is necessary for a VA examination to address the noted deficiencies. Moreover, the January 2014 DBQ examiner did not provide a nexus opinion for the claimed tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Such should be addressed on remand. Finally, as referenced above, the record indicates that there may be outstanding clinical records pertinent to the pending claims. At the December 2016 hearing, the Veteran testified that that since separation from service, "[his] hearing has gradually been going down" as is documented by "DOT physical [evaluations] [conducted] every two years." See December 2016 Hearing Tr. at 4. Moreover, in December 2016, the Veteran submitted a list of companies that he has worked for since January 1989 and indicated that the companies may also have access to the physical evaluation forms from the Department of Transportation. As the claims file currently does not contain the identified clinical records, while on remand, the AOJ should attempt to obtain these records. While on remand, the AOJ should associate any updated VA treatment records with the Veteran's claims file and request that he identify any outstanding private treatment records referable to his claims. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Contact any appropriate source to obtain all available audiological tests contained in physical evaluation forms from the Department of Transportation and/or from the Veteran's former employers included in the list submitted to VA in December 2016. All reasonable attempts should be made to obtain such records. If the records do not exist or further efforts to obtain them would be futile, issue a formal finding of unavailability and notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, schedule the Veteran for a VA audiology examination to determine whether the claimed bilateral hearing loss and tinnitus are due to service. The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. All indicated tests should be performed. After reviewing the record, the examiner should offer the following opinions: (A) The examiner should confirm the current diagnoses of bilateral hearing loss. The examiner must also identify whether the Veteran has or has had tinnitus since the date of claim (i.e. since July 2013). (B) For right ear hearing loss, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right ear hearing loss is related to his military service, to specifically include the competently reported in-service noise exposure as well as continuity of hearing loss symptomatology since service. (C) As for left ear hearing loss, the examiner should determine whether the disability increased in severity in service. If so, then the examiner should opine whether there is clear and unmistakable (i.e. undebatable) evidence that such increase in severity is due to the natural progress of the condition. (D) For any diagnosed tinnitus, the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset in or was otherwise incurred in service, to specifically include the competently reported in-service noise exposure. In answering the above-questions, the examiner should consider a number of positive threshold shifts documented in the in-service audiometric testing results dated in August 1982, June 1983, and May 1986. The examiner is notified that the Veteran is competent to report as to the onset and continuity of symptomatology of the claimed bilateral hearing loss and tinnitus. A complete rationale should be given for all opinions and conclusions expressed. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER 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).