Citation Nr: 18132349
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-21 699

DATE:	September 6, 2018
Entitlement to service connection for bilateral hearing loss.
The Veteran served on active duty from January 1968 to December 1970, with service in Vietnam.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  This case was previously before the Board in September 2016.
In July 2016 the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.
Remand is required to obtain an adequate VA examination and opinion.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records.  Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  A 2010 VA examination provided negative nexus opinions regarding hearing loss.  The examiner found hearing loss unrelated to service as there was normal hearing at discharge and significant post-service noise exposure.  Here, an April 2017 VA examiner opined that hearing loss was not related to the Veteran’s active service.  In doing so, however, it appears that the April 2017 examiner essentially relied on the absence of in-service corroborating medical records as the sole reason for providing the negative opinion.  Additionally, the Veteran’s lay statements were not discussed.  In an August 2011 submission, the Veteran reported in-service noise exposure of jet engines, propeller noise, gun fire, mortar fire, and other heavy equipment without hearing protection during service.  He stated that he had no post-service noise exposure.  The Board further notes that in the Veteran’s representative’s June 2018 written argument the issue of hearing loss secondary to aggravation by service-connected tinnitus was also raised.  Based on the foregoing, another opinion must be obtained.
The matter is REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after April 19, 2017.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his representative.
2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.
3.  After any additional records are associated with the claims file, provide the Veteran with the appropriate examination to determine the etiology of the claimed hearing loss.  The claims file must be made available to and reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s hearing loss had its onset in active service or within one year of service discharge, or is otherwise caused by active service, to include the Veteran’s noise exposure.  The examiner must address the Veteran’s lay statements that his hearing loss began in service after experiencing noise exposure.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s hearing loss is caused or aggravated by his service-connected tinnitus.
4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2018).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.
Veterans Law Judge
Board of Veterans’ Appeals

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