Citation Nr: 18152663 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-54 634 DATE: November 23, 2018 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1980 to May 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of the April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The RO in St. Petersburg, Florida certified the appeal to the Board. The Veteran’s claims file remains in the jurisdiction of the St. Petersburg RO. The Veteran was scheduled for a hearing in November 2018, but he failed to report, and no request for postponement has been received. Thus, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran’s service connection claims. The Veteran seeks service connection for bilateral hearing loss and tinnitus. Military personnel records list the Veteran’s military occupational specialty as aviation supply man. The Veteran contends that he experienced excessive noise exposure through the course of his military service duties, which resulted in his current bilateral hearing loss and tinnitus. The Veteran was scheduled for a VA examination on April 19, 2015. However, the record reflects that the Veteran failed to report to the examination. Unfortunately, the record does not indicate whether the Veteran received adequate notice of the scheduled examination. The record lacks clear notice of the VA examination. On April 6, 2015, the RO notified the Veteran that a local VA medical facility would contact the Veteran and provide him with details of the examination. The record is absent of documentation notifying the Veteran of the date, time, and place of the April 2015 examination. But, the April 6, 2015 Compensation and Pension Exam Inquiry listed a different address than the one the Veteran provided in his original claim for service connection. In addition, following the scheduled April 2015 examination, the Veteran stated in a June 2015 notice of disagreement that he was never notified of the examination. Unlike other regular VA practices, there is no published guidance establishing the presumption of regularity in this situation. See Kyhn v. Shinseki, 716 F.3d 572, 577-78 (Fed. Cir. 2013) (explaining that the regular practice of VA officials providing notice of a VA examination is not supported by law or policy, unlike for example, the practice to mail the Veteran notification of a rating decision, which is referenced in 38 U.S.C. § 7105 (b)(1)). Therefore, there is sufficient ambiguity in the record surrounding whether the Veteran was notified of the VA examination. Consequently, the Board finds that the Veteran should be afforded the opportunity for another medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to submit any lay statements or outstanding, relevant private treatment records. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 2. Then, please schedule the Veteran for another VA examination with a qualified examiner to assess the etiology of his bilateral hearing loss and tinnitus. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s current bilateral hearing loss disability is related to his period of active duty service? Please explain why or why not, specifically discussing why his current hearing loss is/is not a delayed response to his in-service noise exposure. Furthermore, if the audiologist attributes the Veteran’s current hearing loss exclusively to post-service acoustic trauma, then he or she should explain the basis for the conclusion that the in-service acoustic trauma did not result in permanent hearing loss. (b.) If it is less likely than not that the Veteran’s current bilateral hearing loss had its clinical onset during his period of active service, is it at least as likely as not that his current bilateral hearing loss had its clinical onset within one year of his separation from service? Please explain why or why not, specifically discussing why his current hearing loss is/is not merely a delayed response to his in-service noise exposure. (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s current tinnitus is related to his period of active duty service? Please specifically ask the Veteran to describe the history and progression of his symptoms of tinnitus, including when those symptoms first began. If the Veteran reports that his tinnitus began after service, please discuss why it is/is not merely a delayed response to his in-service noise exposure. (d.) If it is less likely than not that the Veteran’s current tinnitus had its clinical onset during his period of active service is it at least as likely as not that his current tinnitus had its clinical onset within one year of his separation from service? Please specifically ask the Veteran to describe the history and progression of his symptoms of tinnitus, including when those symptoms first began. If the Veteran reports that his tinnitus began after service, please discuss why it is/is not merely a delayed response to his in-service noise exposure. 3. A discussion of the underlying reasons for any opinions expressed must be included in the audiologist’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel