Citation Nr: 1806013 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-00 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for bilateral hearing loss disability and tinnitus. The Veteran was afforded a VA examination in July 2010. The examiner noted that the Veteran did not specifically attribute his hearing loss and tinnitus to his tenure in service. It was also noted that the Veteran had excessive noise exposure as a teletype operator during service as well as civilian work for General Motors on an assembly line in 1965 and from 1969 to 1993. Hearing protection was not worn during service and was worn most of the time while working for General Motors. The examiner opined that the Veteran's hearing loss disability and tinnitus were not at least as likely as not related to service based on audiometric data showing normal hearing during service on entrance in May 1966 and on separation in June 1969, there being no complaints of hearing loss or tinnitus in service treatment records, the Veteran reported the onset of both conditions to be about 5 years ago, and the extensive amount of civilian occupational noise history. The Veteran submitted a notice of disagreement in August 2010 disputing the findings in the VA examination. The Veteran stated that he told the examiner that his conditioned worsened 5 years ago. He also stated that he noticed noise in his ears during service and sought treatment for it. In a March 2010 statement, which was contained in the claim file prior to the July 2010 VA examination, the Veteran stated that he had experienced tinnitus since service and stated that his hearing loss and tinnitus are related to his military service. The Board finds this opinion inadequate as in-service hearing loss is not required to establish entitlement to service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, the examiner failed to explain why the Veteran's inservice noise exposure without hearing protection did not cause or contribute to his current hearing loss disability and tinnitus. The examiner also based the opinion on inaccurate medical history as explained by the Veteran in the August 2010 notice of disagreement and did not consider the Veteran's March 2010 statement. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). As such, the Board finds it necessary to remand the claims for another VA opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the record does not contain any post-service medical treatment records, the Board finds that a request for the Veteran's medical records should be made, including any possible medical records from General Motors during his time working there. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal, to include lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his hearing loss and tinnitus. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran's response, the RO must request any medical treatment records from General Motors, including audiological testing. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded a VA audiological examination by an examiner who has not previously examined the Veteran, to determine whether his bilateral hearing loss disability and tinnitus are related to his military service. All pertinent symptomatology and findings must be reported in detail and any indicated diagnostic tests and studies must be accomplished. The claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must elicit from the Veteran and record in the examination report a full history. After a review of the evidence of record, to include the Veteran's statements, the examiner must provide an opinion as to whether any degree of the currently diagnosed bilateral hearing loss disability and tinnitus are related to the Veteran's military service. In offering this opinion, the examiner must specifically acknowledge and discuss the competent lay evidence regarding in-service noise exposure and symptoms. The examiner must specifically discuss the Veteran's assertions as to inservice and post-service occupational noise exposure and symptomatology. The examiner is advised that the Veteran's statements and his military occupational specialty are competent evidence of noise exposure and symptomatology during his service and thereafter. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The appellant 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 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). _________________________________________________ E.I. VELEZ 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).