Citation Nr: 1815643 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-44 113A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from December 1973 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2013 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. In December 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Based on the Veteran's December 2017 testimony and upon review of the evidence of record, the Board finds that further development is required prior to final adjudication of the Veteran's claim for service connection for bilateral hearing loss and tinnitus, service connection for hepatitis C, and increased evaluation for TBI. Specifically, remand is necessary to afford the Veteran new examinations and to obtain medical opinions. With respect to his claim for increased evaluation for TBI, the Veteran was afforded a VA examination in September 2016. However, at his December 2017 hearing, the Veteran testified that his condition has since worsened and that the current evaluation is not reflective of his present level of severity. See Hearing Transcript p. 18. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). With respect to his service connection claim for hepatitis C, the Veteran contends that he contracted hepatitis C in service. Specifically, he testified about an incident in service where he was exposed to blood when he tried to help wrap his fellow service member's hand that was cut off. See Hearing Transcript, pp. 9-11. Additionally, in a statement submitted with his substantive appeal, the Veteran stated that he recalled symptoms of fever, nausea, muscle and joint pain after being exposed to a fellow soldier's blood. See VA Form 9 dated December 2014. VA treatment records reflect treatment for hepatitis C and that a diagnosis was not made until November 2008. Given the lay statements and conflicting evidence of record, the Board finds that remand is warranted to obtain a new examination and etiological opinion that sufficiently addresses the Veteran's statements of record, in particular, his December 2017 testimony. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding his service connection claims for bilateral hearing loss and tinnitus, the Board observes that the Veteran was afforded a VA examination in April 2013. The examiner found that the degree of hearing sensitivity could not be determined since responses were inconsistent and unreliable. As for the relationship of hearing loss and tinnitus to military noise exposure, the examiner stated that "findings were not reliable and not suitable for adjudication purposes" as the examiner could not "resolve this issue without resort to mere speculation." See Audio examination dated April 2013. The Board finds that the April 2013 examiner's conclusion, that she is unable to provide any opinion without resorting to speculation, inadequate and additional development is required. In making such determination, the examiner failed to explain her inability to provide that opinion, identifying precisely what facts could not be determined. In particular, she failed to comment on whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Additionally, the 2013 opinion does not reflect consideration of the Veteran's lay statements as to onset of hearing loss and tinnitus symptoms in service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that remand is warranted for additional testing that could lead to a more conclusive opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records not evidenced by the current record and associate with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his claimed TBI. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an etiological opinion addressing the Veteran's hearing loss and tinnitus. a) The examiner is asked to identify whether the Veteran has a current hearing loss disability or tinnitus. b) If so, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the hearing loss disability or tinnitus had onset in service or is related to the Veteran's time in service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hepatitis C. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. After reviewing the claims file, the examiner is to provide an opinion as to whether the Veteran's hepatitis C is at least as likely as not (a 50 percent or greater probability) that the claimed hepatitis C had onset in service or is directly linked to the Veteran's time on active duty. The provided examination opinions must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's December 2017 hearing testimony) setting forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH 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).