Citation Nr: 21076271 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-57 798 DATE: December 23, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for second metatarsal bone fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1992 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal of April 2018 and July 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). By a rating action in January 2017, the RO denied the Veteran's claim of service connection for bilateral hearing loss. Subsequently, in a decision review officer's (DRO) decision, dated in October 2017, the RO granted service connection for second metatarsal bone fracture and assigned a zero percent rating. In September 2021, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing. A copy of the transcript is of record. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran essentially contends that he developed hearing loss due to exposure to acoustic trauma while on active duty. At his personal hearing in September 2021, the Veteran indicated that his military occupational specialty (MOS) was assault gunner; as a result, he was assigned to infantry and constantly exposed to loud noise. The Veteran testified that he was also had the machine guns, the mortars, the dragons and small guns, which were the loudest weapons that they shot in infantry; he stated that they would go to the range and shoot those weapons all day long. The Veteran testified that his secondary MOS was dealing with explosives; so, they used explosives like C4 and stuff like that and Bangalores. The Veteran maintained that he has had problems with his hearing ever since he left service, and it has affected him all his life. The Veteran related that while he was exposed to noise after service, they used proper personal protective equipment (PPEs) such as earplugs for work. He stated that his hearing loss has worsened quite a bit through the years. The Veteran was afforded a December 2016 VA examination which indicated that he had left ear hearing loss but did not have right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. The examiner determined the Veteran's left ear hearing loss was not related to service. The examiner indicated the Veteran's service exit examination in July 1996 showed normal hearing thresholds and significant shifts were not found between the Veteran's entrance and separation from service. As noted above, in September 2021, the Veteran testified that his hearing loss had gotten worse since the last VA examination in 2016. The Veteran must be scheduled for a new examination before the claim can be decided on the merits to assess whether he currently has hearing loss in accordance with 38 C.F.R. § 3.385. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). In addition, an etiology opinion should be obtained regarding whether any diagnosed hearing loss is related to service. 2. Entitlement an initial compensable rating for second metatarsal bone fracture is remanded. In its October 2017 decision review officer's (DRO) decision, the RO granted service connection for second metatarsal bone fracture; a zero percent rating was assigned, effective February 18, 2016. The Veteran submitted a timely Notice of Disagreement with the rating assigned to his right foot disorder in November 2017. However, a statement of the case has not yet been issued addressing such claim. Where a notice of disagreement has been filed with regard to a claim, and a statement of the case has not been issued, the appropriate Board action is to remand the claim for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following actions: 1. Issue a statement of the case as to the issue of entitlement to an initial compensable rating for second metatarsal bone fracture, in response to the timely notice of disagreement that the Veteran filed in November 2017. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an initial compensable rating for second metatarsal bone fracture. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records 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. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral hearing loss. The claims folder should be made available to the examiner for review in conjunction with the examination. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should state whether the Veteran has hearing loss per § 3.385 and offer an opinion as to whether any hearing loss at least as likely as not (a 50 percent or higher degree of probability) had its onset during active service, within a year of service, or is otherwise related to the Veteran's period of active service, including noise exposure. The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, Counsel 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.