Citation Nr: 18143019 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-14 052 DATE: October 17, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Appellant had active service from September 1972 to February 1973 and additional reserve service. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Appellant’s service treatment records dated during his active service from September 1972 to February 1973 are silent for complaint, treatment, or diagnosis of bilateral hearing loss or tinnitus, and no party asserts otherwise. After active service, a December 1986 Report of Medical Examination, a quadrennial examination, indicates that he presented with impaired hearing considered a disability under 38 C.F.R. § 3.385. A November 1990 Report of Medical Examination, another quadrennial examination, indicates that he presented with such impaired hearing, however, only in the right ear. In his May 2015 Notice of Disagreement (NOD), the Appellant reported that he was on the rifle range for qualifications in the Army Reserves in Hickory, North Carolina, and that he was in the arms room, approximately an eight-by-eight concrete room, and an M-16 was being placed back into the storage rack and was discharged right next to him. He reported that he and the other service members in the room were given incident forms, and that he complained of ringing in the ears, however, he was not provided treatment. He asserted that he was later sent to the Department of Veterans Affairs Medical Center (VAMC) in Asheville, North Carolina, for a hearing test, without treatment, and later sought private treatment where he was diagnosed with a perforated ear drum. The Appellant did not provide the date of his claimed incident to which he attributes his bilateral hearing loss and tinnitus. Private treatment records indicate that the Appellant had a left perforated ear drum in October 2001. A private March 2002 audiogram is almost illegible, however, it appears to indicate that the Appellant had impaired hearing considered a disability under 38 C.F.R. § 3.385, and during private treatment in August 2003, he complained of tinnitus. It is unclear the date, and the duty status of the Appellant, whether he was on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), at the time of the claimed incident involving the discharged M-16 in a small concrete room to which he attributes his bilateral loss and tinnitus. There are a number of personnel records associated with the claims file indicating dates upon which the Appellant was assigned to ACDUTRA, however, none of the available records show such duty status on the dates of the December 1986 and November 1990 Reports of Medical Examination. On remand, the Agency of Original Jurisdiction (AOJ) should confirm the Appellant’s duty status at the time of the December 1986 and November 1990 Reports of Medical Examination. The AOJ should elicit from the Appellant the date of his claimed incident to which he attributes his bilateral hearing loss and tinnitus and confirm the Appellant’s duty status at that time. The AOJ should also request any service records related to the incident reports he described as submitted by him and his fellow service members in Hickory, North Carolina, and request any outstanding treatment records from the VAMC in Asheville, North Carolina. The AOJ should afford the Appellant a VA examination to determine if testing reveals current impaired hearing considered a disability under 38 C.F.R. § 3.385 and tinnitus, and if his current bilateral hearing loss and tinnitus, if any, are related to his ACDUTRA or INACDUTRA, including the reported incident involving the discharged M-16 in a small concrete room, or if any tinnitus is secondary to any bilateral hearing loss. To the extent that any tinnitus may be secondary to bilateral hearing loss that may be service-connected, the AOJ should provide the Appellant sufficient Veterans Claims Assistance Act of 2000 (VCAA) notice. Entitlement to service connection for bilateral pes planus is remanded. The Appellant’s service treatment records dated during his active service from September 1972 to February 1973 are silent for complaint, treatment, or diagnosis of pes planus, and no party asserts otherwise. After active service, December 1986 and November 1990 Reports of Medical Examination, quadrennial examinations, indicate that he had bilateral pes planus, moderate, asymptomatic. The Appellant asserts, in his July 2015 NOD, that he was diagnosed with bilateral pes planus during service, and that he was never treated or informed of such. The record is silent for any current pes planus. On remand, the AOJ should confirm the Appellant’s duty status, whether he was on a period of ACDUTRA or INACDUTRA, at the time of the December 1986 and November 1990 Reports of Medical Examination, as directed above. The AOJ should afford the Appellant a VA examination to determine if he has current bilateral pes planus, and if so, whether such is related to his ACDUTRA or INACDUTRA. The matters are REMANDED for the following action: 1. Contact the Appellant and request that he identify the date of his claimed incident involving the discharged M-16 in a small concrete room in Hickory, North Carolina, to which he attributes his bilateral loss and tinnitus, and the date of his reported treatment, for hearing testing, at the VAMC in Asheville, North Carolina. 2. Provide the Appellant sufficient VCAA notice as to his claim of entitlement to service connection for tinnitus, in case the record raises the issue of entitlement to such on a secondary basis. 3. Obtain any service records which pertain to the incident reports described by the Appellant, as submitted by him and his fellow service members, after the incident involving the discharged M-16 in a small concrete room in Hickory, North Carolina, based on his response from the inquiry as to the pertinent dates, detailed above. 4. Determine the specific dates of when the Appellant served on ACDUTRA and/or INACDUTRA and create a timeline of these dates; specifically, determine the Appellant’s duty status at the time of his December 1986 and November 1990 Reports of Medical Examination, as well as his duty status on the date of his reported incident involving the discharged M-16 in a small concrete room, based on his response from the inquiry as to the pertinent dates, detailed above. 5. Obtain the Appellant’s VA treatment records from the VAMC in Asheville, North Carolina, for hearing testing, based on his response to the inquiry as to the pertinent dates, detailed above. 6. Schedule the Appellant for an examination by an appropriate clinician as to his bilateral hearing loss and tinnitus. All indicated tests and studies should be conducted. The examiner must be provided the Appellant’s enumerated periods of ACDUTRA and INACDUTRA, specifically, his duty status at the time of his December 1986 and November 1990 Reports of Medical Examination, at which time he was diagnosed with bilateral impaired hearing considered a disability under 38 C.F.R. § 3.385 and right-ear impaired hearing considered a disability under 38 C.F.R. § 3.385, respectively, and his duty status at the time of his claimed incident involving the discharged M-16 in a small concrete room. (a) The examiner must opine whether it is at least as likely as not that the Appellant’s bilateral hearing loss occurred as a disease or injury diagnosed during a period of ACDUTRA at the time of his December 1986 Report of Medical Examination, or that his right-ear hearing loss occurred as a disease or injury diagnosed during a period of ACDUTRA at the time of his November 1990 Report of Medical Examination, or that any bilateral hearing loss and tinnitus occurred as diseases or injuries related to the claimed incident involving the discharged M-16 in a small concrete room during a period of ACDUTRA, if such periods of service are deemed to be ACDUTRA. (b) The examiner must opine whether it is at least as likely as not that the Appellant’s bilateral hearing loss occurred as an injury diagnosed during a period of INACDUTRA at the time of his December 1986 Report of Medical Examination, or that his right-ear hearing loss occurred as an injury diagnosed during a period of INACDUTRA at the time of his November 1990 Report of Medical Examination, or that any bilateral hearing loss and tinnitus occurred as injuries related to the claimed incident involving the discharged M-16 in a small concrete room during a period of INACDUTRA, if such periods of service are deemed to be INACDUTRA. (c) The examiner must opine whether it is at least as likely as not that the Appellant’s tinnitus is: (1) proximately due to bilateral hearing loss, or (2) aggravated beyond its natural progression by bilateral hearing loss. 7. Schedule the Appellant for an examination by an appropriate clinician as to his bilateral pes planus. All indicated tests and studies should be conducted. The examiner must be provided the Appellant’s enumerated periods of ACDUTRA and INACDUTRA, specifically, his duty status at the time of his, specifically, his duty status at the time of his December 1986 and November 1990 Reports of Medical Examination, at which time he was diagnosed with moderate, asymptomatic bilateral pes planus. (a) The examiner must opine whether the Appellant’s bilateral pes planus is a congenital or development defect or a congenital or development disease. (b) If it is a congenital or development defect, the examiner must opine whether it is at least as likely as not that the Appellant’s bilateral pes planus experienced a superimposed injury or disease during a period of ACDUTRA at the time of his December 1986 or November 1990 Reports of Medical Examination, if such periods of service are deemed to be ACDUTRA. (c) If it is a congenital or development disease, the examiner must opine whether it is at least as likely as not that the Appellant’s bilateral pes planus either first manifest during a period of ACDUTRA, or aggravated beyond its natural course during a period of ACDUTRA, at the time of his December 1986 or November 1990 Reports of Medical Examination, if such periods of service are deemed to be ACDUTRA. (Continued on the next page) (d) If it is not a congenital or development defect or disease, the examiner must opine whether it is at least as likely as not that the Appellant’s bilateral pes planus was traumatic, whether it was due to any injury during a period of ACDUTRA or INACDUTRA, at the time of his December 1986 or November 1990 Reports of Medical Examination, if such periods of service are deemed to be ACDUTRA or INACDUTRA. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum