Citation Nr: 1807636 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from April to August 1965 and from January 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2015, the Veteran testified during a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2016, the Board reopened the Veteran's service connection claim for bilateral hearing loss and remanded the claim for additional development. The Board notes that additional evidence, to include VA treatment notes dated through November 2016 and a July 2016 statement from the Veteran regarding in-service noise exposure, was added to the record after the issuance of a June 2016 supplemental statement of the case. Although the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration of the additional evidence, he is not prejudiced by the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The AOJ will have opportunity to review the additional evidence received on remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran 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 claim 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 is the result of in-service noise exposure. Specifically, he maintains that while stationed in Vietnam as an "airfreight specialist . . . [he] loaded and unloaded cargo off of aircrafts, primarily C130's" without the benefit of hearing protection. See February 2015 Hearing Tr. at 3-4. He has further argued that post service, "he has not had a job where he had worked around loud noises . . ." See id. at 9. Personnel records from the Veteran's second period of active service (i.e. from January 1968 to June 1969) document that he had combat experience in the Republic of Vietnam from August 1968 to May 1969 as an air freight specialist. His DD-214 form for the first period of service (i.e. from April to August 1965) also lists his military occupational specialty as an air freight specialist. While service clinical records for the first period of service, to include an April 1965 enlistment examination report, do not document bilateral hearing loss disability, the Veteran's second period of service clinical records include July 1968 periodic examination and March 1969 separation examination reports showing bilateral hearing loss for VA compensation purposes. In this regard, the Board notes that International Standards Organization-American National Standards Institute (ISO-ANSI) standard will be considered for service department audiograms conducted between January 1, 1967 and December 31, 1970. The claims file currently does not include an enlistment examination report for the second period of service. Post-service, the Veteran has been diagnosed with bilateral hearing loss for VA compensation purposes. See August 2011 VA contract examination report. In August 2011 and June 2016 negative nexus opinions, the examiners failed to address the Veteran's competent report as to in-service noise-exposure without hearing protection and continuity of bilateral hearing loss symptoms since service. Moreover, neither examiner considered the Veteran's argument that since service, "he has not had a job where he had worked around loud noises." See February 2015 Hearing Tr. at 9. Further, the June 2016 examiner's opinions were unresponsive to the correct legal criteria based on the evidence of record. In this regard, a preexisting hearing loss was not noted in the Veteran's enlistment examination report for the first period of service, and as such, the presumption of soundness attaches to that period of service, which may be rebutted only by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2017). Moreover, there have been no attempts to obtain the Veteran's enlistment examination report from his second period of service, which is necessary for a proper determination of whether the presumption of soundness attaches to that period of service. See 38 C.F.R. § 3.304(b). The AOJ should undertake appropriate action to obtain the Veteran's enlistment examination report during his second period of service, if any, and if it is not available, the AOJ should make a formal finding of unavailability and notify the Veteran as to the steps that were taken to obtain it and an explanation as to the reason(s) it is unavailable. Finally, at the February 2015 hearing, the Veteran identified outstanding hearing examination reports dated from 1970 at a private facility located in Blairsville, Georgia. See February 2015 Hearing Tr. at 6-7. Given that such identified records have not been associated with the claims file, while on remand, the AOJ should attempt to obtain those records as well as updated VA treatment records and other outstanding private treatment records relevant to the present claim. 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 claim, to include private hearing examination reports dated from 1970 from a facility in Blairsville, Georgia. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Make all reasonable attempts to obtain the Veteran's enlistment examination for his second period of service (i.e. from January 1968 to June 1969). All reasonable attempts should be made to obtain such record. If the record cannot be obtained after reasonable efforts have been made, issue a formal determination that such record does not exist or that further efforts to obtain such record would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, return the electronic claims file to the VA audiologist who issued the June 2016 VA opinion. The electronic claims file and a copy of this Remand must be made available to the examiner. If the June 2016 VA audiologist is not available, the electronic claims file should be provided to an appropriate medical professional to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the examiner who selected to write the addendum opinion. For the first period of service (from April to August 1965) (A) The examiner is asked to opine whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the claimed bilateral hearing loss disability pre-existed the first period of service. If so, the examiner should determine whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the pre-existing bilateral hearing loss did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. (B) If there is no clear and unmistakable evidence that the claimed bilateral hearing loss pre-existed the first period of service, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his first period of his service. For the second period of service (i.e. from January 1968 to June 1969) (A) If bilateral hearing loss was noted on enlistment examination (if obtained), the examiner is asked to opine as to whether the disorder increased in severity in service. If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence (i.e. undebatable evidence) that such increase in severity is due to the natural progress of the condition. (B) If bilateral hearing loss was not noted on entrance examination OR the entrance examination report is not of record, the examiner is asked to opine as to whether there is clear and unmistakable evidence (i.e. undebatable) that the disorder pre-existed the second period of service and was not aggravated during that period of service. (C) If there is no clear and unmistakable evidence that bilateral hearing loss pre-existed the second period of service, then the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the disorder is directly related to that period of service. In offering the requested opinions, the examiner must address the Veteran's competent report of in-service noise exposure without hearing protection as an air freight specialist during both periods of service as well as his argument that he has not had significant noise exposure post service. 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains 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 matter 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).