Citation Nr: 0101387 Decision Date: 01/18/01 Archive Date: 01/24/01 DOCKET NO. 99-08 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Francesca Craft, Associate Counsel INTRODUCTION The veteran had active service from March 1966 to December 1969. The Board of Veterans' Appeals (Board) first notes that the veteran filed a claim for hearing loss in both ears in March 1970. The regional office (RO) issued a rating decision in September 1970, which granted service connection for partial deafness of the left ear, but failed to address the veteran's claim for service connection for hearing loss in the right ear. Therefore, the original claim for service connection for right ear hearing loss remains an open claim. The Board further notes that in May 1998 the veteran filed a claim for service connection for right ear hearing loss. In October 1998 the RO issued a rating decision which continued the zero percent disability rating for the left ear and denied service connection for the right ear. In February 1999 the veteran filed a Notice of Disagreement as to the claim for service connection of the right ear only. The RO issued a Statement of the Case as to the claim for service connection for right ear hearing loss in March 1999. In May 1999 the veteran filed a substantive appeal as to the claim for right ear hearing loss that was properly construed by the RO as also a Notice of Disagreement as to the claim for an increased disability rating for his left ear. The RO issued a Supplemental Statement of the Case addressing the increased disability rating claim for the left ear in July 2000. Since the record does not reflect the filing of a substantive appeal for the left ear claim in accordance with 38 C.F.R. § 20.202 (2000), the Board finds that this issue is not a matter for current appellate review. REMAND The Board has preliminarily reviewed the issue on appeal and notes that service medical records reveal that the veteran had three audiological examinations performed during active service. The results of these examinations failed to meet the disability criteria under 38 C.F.R. § 3.385 (2000) for his right ear. The veteran complained of bilateral hearing loss within six months of his separation from the service; however, the results of an audiological examination performed by the Department of Veterans Affairs (VA) in June 1970 also failed to meet the disability criteria under 38 C.F.R. § 3.385 in his right ear. An audiological examination performed in August 1997 by the VA revealed a hearing threshold of 60 decibels at 4000 Hertz in the veteran's right ear and a speech recognition score of 88 percent, which meets the disability criteria under under 38 C.F.R. § 3.385. Subsequent VA audiological examination in September 1998 also revealed findings that satisfied the requirements of 38 C.F.R. § 3.385. In light of the veteran's current disability in his right ear and new legislative changes set forth below, the Board finds that a medical opinion is necessary to decide the claim for service connection for right ear hearing loss. Recently enacted legislation, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), contains extensive provisions modifying the adjudication of all pending claims. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The salient features of the new statutory provisions (and where they will be codified in title 38 United States Code) may be summarized as imposing the following obligations on the Secretary: (1) The Secretary must provide application forms and notify the claimant and the representative, if any, if his application is incomplete, of the information necessary to complete the application (38 U.S.C.A. § 5102); (2) The Secretary must provide the claimant and the claimant's representative, if any, with notice of required information and evidence not previously provided that is necessary to substantiate the claim (38 U.S.C.A. § 5103(a)); (3) The Secretary must indicate which part of the information and evidence, if any is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant (38 U.S.C.A. § 5103(a)); (4) The Secretary must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim (38 U.S.C.A. § 5103A(a)); (5) The Secretary must make every reasonable effort to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(b)(1)); (6) If, after making reasonable efforts to obtain relevant records, the Secretary is unable to obtain the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records, and such notification shall (a) identify the records the Secretary is unable to obtain (b) briefly explain the efforts that the Secretary made to obtain those records; and (c) describe any further action to be taken by the Secretary with respect to the claim (38 U.S.C.A. § 5103A(b)(2)). (7) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). (8) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) [38 U.S.C.A. § 5103A(b)] shall include obtaining the following records if relevant to the claim: (a) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity (38 U.S.C.A. § 5103A(c)(1)). (b) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)). (c) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)). (9) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) [38 U.S.C.A. § 5103A(a)] shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim (38 U.S.C.A. § 5103A(d)(1)). (a) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)- (i) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (ii) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (iii) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. (10) Nothing in this section [38 U.S.C.A. § 5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) [38 U.S.C.A. § 5103A(a)] to a claimant in substantiating a claim as the Secretary considers appropriate (38 U.S.C.A. § 5103A(g)). (11) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary (38 U.S.C.A. § 5107). Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The veteran should be asked to identify any sources of recent pertinent medical treatment for any hearing disorder. Any medical records other than those now on file pertaining to any hearing disorder should be obtained and associated with the claims folder. 3. The RO should obtain a medical opinion by an appropriate medical provider to determine the nature, status and etiology of any hearing disability of his right ear. The medical provider is specifically requested to address the findings from the audiological examinations performed in service, in June 1970 and in August 1997. The claims file and a separate copy of this remand must be made available to and reviewed by the medical provider. After a review of the evidence in the claims folder, including service and VA medical records, the medical provider should express opinions as to the following: (a) what is the nature, etiology and diagnosis of any hearing disability of the right ear present during service or within one year of service; (b) what is the etiology and correct diagnosis of any current hearing disability in the right ear; and (c) what is the degree of medical certainty that there is a causal relationship between the veteran's current hearing disability in the right ear and his service. If the provider can not answer any of the above questions without resort to speculation, he or she should so indicate. 4. Thereafter, the RO should review the claims file to ensure that all of the above requested development has been completed in full. In particular, the RO should ensure that the required opinion is in compliance with this remand and if they are not, the RO should implement corrective procedures. 5. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of entitlement to service connection for right ear hearing loss. 6. Thereafter, the RO should again review the record. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome as to this issue. The appellant need take no action until otherwise notified. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).