Citation Nr: 21041848 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-21 656 DATE: July 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from February 1971 to November 1972. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled to appear for a hearing in June 2021. Prior to the hearing, the Veteran requested the Board decide his appeal without a hearing. Because he has not requested another hearing, his initial hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his bilateral hearing loss is related to military acoustic trauma during 21 years of service, including time spent as a tanker while on active duty and as an engineer for the National Guard. See September 2015 Statement in Support of Claim. Additionally, the Veteran asserts that he had no noise exposure prior to military, as noted by the January 2016 VA Examination. The Veteran's military personnel records revealed that he was a light weapons infantryman, which suggests highly probable hazardous noise exposure. See DD214. His service treatment records (STR) did not reflect any ear abnormalities or complaints relating to an acoustic trauma or hearing loss. A February 1971 Report of Medical Examination and Report of Medical History for the Veteran's enlistment found no problems with his ears or his hearing; audiogram revealed normal hearing. An August 1972 Report of Medical Examination and Report of Medical History for the Veteran's separation found no problems with his ears or his hearing. Additionally, a November 1972 Statement of Medical Condition, the Veteran noted "there has been no change in my medical condition since my last separation exam." Although the Veteran expressed doubts with the occurrence of his separation audiogram, the Board notes that a copy of the separation audiogram graph with the Veteran's name is found in the STR. The Veteran was afforded a VA evaluation in January 2016 to address his claim. There, the puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 75 75 70 LEFT 55 70 70 65 His average puretone threshold was 70 decibels in the right ear and 65 decibels in the left ear. His speech audiometry reading was 76 percent in the right ear and 78 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in both the right and left ear. The Veteran reported having trouble hearing in Church, and at work. He often asks his wife to repeat everything and has trouble hearing soft spoken people. Based on his audiometric reading, the Veteran demonstrated hearing loss for VA purposes in both ears. However, the examiner found that the Veteran's bilateral hearing loss is less likely as not related to his military service. As rationale, the examiner indicated that although the Veteran reported hazardous noise exposure during military service, no significant changes in hearing were demonstrated throughout his period of service. In June 2016, a new VA medical opinion (addendum) was obtained regarding the etiology of the Veteran's bilateral hearing loss. The examiner concluded that the Veteran's bilateral hearing loss is less likely than not a result of military noise exposure. In providing his opinion, the examiner noted that no significant differences in hearing was in his August 1972 examination, compared to his enlistment examination in February 1971. The examiner noted that DA Form 3082-R, completed and signed by the Veteran, attests no change in medical condition since the August 1972 separation examination. Although the Veteran was a light weapons infantryman, the examiner concluded that it is unlikely that significant changes in hearing would have occurred between August 1972 and November 1972, when they did not occur during the preceding 18 months. The examiner noted that the only exception to hearing would be an event of severe acoustic trauma of abnormal intensity, however this was not indicated by the Veteran during the examination. To support his conclusion the examiner stated, "Hearing loss is not known to have delayed onset following noise exposure. It is therefore unlikely that hearing loss will manifest after military service unless significant non-military noise exposure is present. VA Form 2396 [July 1972] indicated that the Veteran was requesting early separation from military service to return to previous employment as a machine operator at Owens-Illinois, a manufacturer of glass bottles. This occupation includes a high probability of hazardous noise exposure and indicates likely noise exposure continuing after military service. The Veteran has not provided specific dates of employment in this occupation, however." Upon review of the evidence, the Board notes that pertinent records are not associated with the claims folder. The Veteran contends that hazardous noise exposure from his active duty service as well as his National Guard service contributed to his hearing loss. With respect to Reserve members, diseases or injuries incurred or aggravated while performing active duty for training (ACDUTRA) are eligible for service connection. 38 U.S.C. §§ 101(24), 106, 1110, 1131. However, if performing inactive duty for training (INACDUTRA), only injuries sustained during that time are eligible for service connection. Id. Although the Veteran reported that he had service in the National Guard, the Veteran's National Guard personnel and medical records have not been associated with the claims file. As such, no determinations of any period of active ACDUTRA during the Veteran's National Guard service have been verified. On remand, all available National Guard personnel and service treatment records, if any, should be obtained and associated with the claims file. Upon receipt of any National Guard records, any additional periods of active duty and ACDUTRA should be specified and an addendum medical opinion should be obtained in order to consider those missing records. The matters are REMANDED for the following action: 1. Determine if the Veteran served in the National Guard and associate this determination with the claims file. If National Guard service is confirmed, obtain and associate with the claims file the Veteran's National Guard personnel and medical records. Make as many attempts necessary to obtain this information. If the VA concludes that it is reasonably certain that the records sought do not exist or that further efforts to obtain those records would be futile, the VA must provide the claimant with an explanation of how service records were maintained, why the search that the VA undertook was reasonably exhaustive, and why further efforts are not justified. 2. If National Guard service is confirmed, verify the dates of the Veteran's periods of active duty and ACDUTRA during the Veteran's National Guard service. 3. Once the above has been completed, return the file to an appropriate examiner for an addendum opinion. Whether an in-person examination is required is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available and reviewed by the examiner. The opinion as follows is requested: (a.) Is the Veteran's bilateral hearing loss at least as likely as not caused by or a result of an event in military service, including noise exposure during active duty, or periods of ACDUTRA in the National Guard? Why or why not? The audiologist must fully explain the rationale for all opinions given. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.