Citation Nr: 18145075 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-35 373A DATE: October 26, 2018 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bowel disorder is remanded. Entitlement to service connection for hemorrhoids is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to August 2010. His awards and decorations included the Combat Action Badge. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board notes that the Veteran has submitted a notice of disagreement (NOD) with a separate October 2017 rating decision. See December 2017 NOD. However, the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of that NOD and is processing the appeal. Therefore, a remand for the issuance of a statement of the case (SOC) for those issues is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). The record indicates that the Veteran failed to report to a VA examination for hearing loss and tinnitus. See July 2016 Statement of the Case (SOC). However, it is unclear whether the Veteran was properly notified. A December 2010 letter informed him that a VA examination had been requested and the nearest VA medical facility would notify him of the date, time, and place of the examination. However, the record does not contain any letter or other document reflecting that the Veteran was actually notified of a scheduled examination. Moreover, the record indicates that the Veteran used a Post Office box address in Ft. Drum, New York, but was frequently in Iraq and Afghanistan working as a private contractor. Under these circumstances, the Board is unable to presume that the Veteran was properly notified of an upcoming examination so as to permit the application of 38 C.F.R. § 3.655(b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that, in the interests of due process and fairness, the Veteran should be afforded an additional opportunity to undergo a VA examination in connection with his claims. With respect to the claims for service connection for a bowel disorder and hemorrhoids, the Board notes that the the Veteran was diagnosed with acute gastroenteritis and a small bowel obstruction in November 2002, and he underwent an exploratory laparotomy and lysis of adhesions. His service treatment records also document complaints of hemorrhoids in September 2007. The Veteran was afforded a VA general medical examination in August 2010. A physical examination revealed no abdominal mass or tenderness, and he was diagnosed with gastroenteritis, resolved, status post small bowel obstruction in November 2002. With regard to hemorrhoids, he reported symptoms, including itching, burning, diarrhea, and difficulty passing stool. However, the examiner found no visible or palpable hemorrhoids, internally or externally. The RO denied the Veteran’s claims for hemorrhoids and a bowel disorder on the basis that there was no current diagnosis. However, the Veteran continues to complain of bowel problems and painful, thrombotic hemorrhoids. See July 2012 NOD; August 2016 lay statement; July 2017 VA treatment records. In addition, the Veteran alleged that he was recently seen in the emergency room with complaints of bowel pain, but these records do not appear to be in the claims file. See July 2012 NOD. Thus, on remand, the Agency of Original Jurisdiction (AOJ) should request any outstanding records and afford him a VA examination to determine the nature and etiology of any bowel disorder or hemorrhoids that may be present. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a bowel disorder, hemorrhoids, tinnitus, and hearing loss. A specific request should be made for any records from the emergency room where the Veteran was treated for bowel pain. See July 2012 NOD. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should afford the Veteran a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss and tinnitus manifested in service or within one year thereafter or are otherwise related to his military service, to include noise exposure therein. In so doing, the examiner should also discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develop from other causes, in determining the likelihood that any current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s electronic claims file, or in the alternative, access to the electronic claims file, must be made available to the examiner for review. 3. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bowel disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a bowel disorder that is causally or etiologically related to his military service, including any symptomatology therein. The Veteran has claimed that he developed the disorder in service as a result of constipation during combat missions. See August 2016 lay statement. The examiner should also consider the service treatment records documenting a November 2002 diagnosis of small bowel obstruction with small mesenteric band at the ileum, exploratory laparotomy, and lysis of adhesions. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hemorrhoid condition that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has hemorrhoids that are causally or etiologically related to his military service, including his any symptomatology therein. The Veteran has claimed that he developed the condition in service as a result of constipation and straining during combat missions. See August 2016 lay statement. The examiner should also consider the service treatment records documenting complaints of hemorrhoids in September 2007, the March 2010 retirement examination finding no hemorrhoids, and the June 2010 report of medical history denying any past or present rectal disease, including hemorrhoids. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. In the event that the Veteran does not report for the scheduled examination(s), documentation should be obtained which shows that notice scheduling the examination(s) was sent to his last known address and to his representative. It should also be indicated whether any notice sent was returned as undeliverable. 6. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel