Citation Nr: 21000604 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-25 493 DATE: January 5, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968, with prior and subsequent service in the Navy Reserve. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2010 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in March 2017. A transcript of that hearing has been associated with the claims file. Correspondence dated in October 2020 notified the Veteran that the VLJ who conducted his March 2017 hearing was no longer employed at the Board and gave him the option of scheduling a new hearing before a different VLJ. As the Veteran did not respond within 30 days, the Board assumes that he did not want another hearing and will proceed accordingly using the hearing transcript already on record. The Veteran seeks entitlement to service connection for bilateral hearing loss. Unfortunately, the Board finds that additional development must be undertaken before this matter can be adjudicated on the merits. The Veteran testified at his March 2017 Board hearing that he served in the Navy as a boatswain’s mate assigned to the exterior “deck force,” and that he was routinely exposed to acoustic trauma at this time from the naval guns mounted on the front part of the ship. The Veteran explained that these naval guns were often fired during target practice drills, and that he was not required to wear hearing protection while performing his duties as a boatswain’s mate in close proximity to the guns. In addition, the Veteran testified that he experienced temporary periods of ringing in his ears as well as hearing loss which began in service and persisted into the present day. Finally, the Veteran reported that he served in the Navy Reserve from 1985 to 2005, and that during this time he trained at the firing range (initially without hearing protection, and later with hearing protection) as a member of the security unit during his periods of active duty for training (ACDUTRA). In its June 2017 Remand, the Board directed the RO to ensure that all of the Veteran's Navy Reserve records had been obtained and associated with the claims file, and to then review the Veteran's personnel records and compile a list of the dates of the Veteran's ACDUTRA and inactive duty for training (INACDUTRA) periods of service. Pursuant to the Board’s June 2017 Remand, an “Information Report” was associated with the claims file in September 2018. This Information Report merely indicated that the Veteran served in the Navy Reserve from June 26, 1979, to August 1, 1999, and again from October 4, 2001, to August 14, 2005. Additionally, it indicated that the Veteran had periods of Guard/Reserve Active Service (GRAS) from May 17, 2002, to June 1, 2002, and from June 8, 2003, to June 28, 2003. Significantly, however, this Information Report did not include a list of the Veteran’s periods of ACDUTRA and INACDUTRA, as specifically requested in the Board’s Remand. A review of the Veteran’s Navy Reserve records reveals many notations in his medical treatment records referencing regular periods of ACDUTRA, although these notations are by no means complete or exhaustive. For instance, an April 22, 1986, treatment note indicated that the Veteran was found to be physically qualified for 14 days of ACDUTRA. A May 2, 1986, treatment note indicated that the Veteran was physically qualified on that date for release from ACDUTRA. A March 3, 1987, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. An April 16, 1988, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. An April 13, 1989, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. A May 18, 1987, treatment note indicated that the Veteran physically qualified on that date for release from ACDUTRA. An October 5, 1989, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. A November 8, 1989, treatment note indicated that the Veteran physically qualified on that date for release from 14 days of ACDUTRA. An August 29, 1991, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. On October 24, 1991, the Veteran certified that he had not suffered from any injuries or illness from this period of ACDUTRA. A December 29, 1991, treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. A March 14, 1992, service treatment note indicated that the Veteran was found to be physically qualified for ACDUTRA. An April 10, 1992, service treatment note indicated that the Veteran physically qualified on that date for release from ACDUTRA. On April 25, 1992, the Veteran certified that he had not suffered from any injuries or illness from this period of ACDUTRA. As the evidence of record suggests that the Veteran experienced a sudden hearing decline between November 1986 and November 1987 during his time in the Navy Reserve, and as the Veteran has indicated that he trained at the firing range (initially without hearing protection) as a member of the security unit during his periods ACDUTRA, the specific dates during which the Veteran performed active service, ACDUTRA, and/or INACDUTRA are very relevant to his claim. Therefore, the Board finds that remand is necessary in order for the RO to verify through official sources any periods of service the Veteran served between his September 1968 discharge from active service and August 2005. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders). The RO should verify the specific types of service that the Veteran performed during the period between September 1968 and August 2005, including any ACDUTRA and/or INACDUTRA. The AOJ must provide the specific dates that the Veteran served each type of verified service. The RO’s findings concerning the Veteran’s dates and types of service must be verified and clearly explained in a Memorandum that is added to the claims file. Merely providing a Retirement Points report would not substantially comply with the Board’s remand directives as to this request. Similarly, merely stating that the Veteran served with the Navy Reserve until 2005 also would not substantially comply with this request. If the Veteran’s specific dates of ACDUTRA and/or INACDUTRA are unable to be verified through official sources, then that should also be explained in a Memorandum that is added to the claims file. Thereafter, return the claims file to the VA audiologist who provided the December 2019 opinion so that another opinion can be rendered with the benefit of a complete listing of the Veteran’s periods of active duty, ACDUTRA, and INACDUTRA. The matters are REMANDED for the following action: 1. Verify through official sources any period(s) of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) the Veteran served between September 1968 and August 2005. The sources of such information may include any financial records available through the Defense Finance Accounting Service (DFAS), as well as the Veteran’s military personnel records. 2. The RO should verify the specific types of service that the Veteran performed between September 1968 and August 2005, including any ACDUTRA and/or INACDUTRA. The RO must also provide the specific dates that the Veteran served each type of verified service. The RO’s findings concerning the Veteran’s dates of service and types of service must be verified and clearly explained in a Memorandum that is added to the claims file. Merely providing a Retirement Points report and/or merely restating that the Veteran served in the Navy Reserve until 2005 will not substantially comply with the Board’s remand directives as to this request. If the Veteran’s specific dates of ACDUTRA and/or INACDUTRA are unable to be verified through official sources, then that should also be explained in a Memorandum that is added to the claims file. 3. After the above development has been completed, obtain an addendum opinion from the VA audiologist who provided the December 2019 VA examination, or if unavailable, another suitably qualified VA medical professional, to determine the likely onset and etiology of the Veteran’s diagnosed bilateral hearing loss. If, after review of the claims file, the audiologist determines that another VA examination is necessary, then such must be scheduled and the Veteran must be notified. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater degree of probability) that that the Veteran's bilateral hearing loss is related to a disease or injury incurred during active duty for training (ACDUTRA), and whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's bilateral hearing loss is related to an injury incurred in inactive duty for training (INACDUTRA) (the Board notes that only injuries, and not diseases, are recognized under 38U.S.C. §101(24) (West 2014) as the basis for establishing service-connection related to periods of INACDUTRA). In rendering the above requested opinions, the examiner should address the lay statements of record concerning in-service and post-service audiological symptoms. In doing so, the examiner should presume the Veteran is competent to report matters within his own personal knowledge, including exposure to loud noise and decreased hearing ability. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3Vet. App.87, 89 (1992). 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. Hensley v. Brown, Vet. App.155, 159 (1993). The examiner must provide complete rationales for all conclusions reached. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, then provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, if warranted, return the appeal to the Board. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.