Citation Nr: 0811669	
Decision Date: 04/09/08    Archive Date: 04/23/08

DOCKET NO.  05-06 498	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

J. M. Wagman, Associate Counsel


INTRODUCTION

The veteran had active military service from April 1959 to 
January 1965. 

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a November 2004 rating decision by the Waco, 
Texas, Regional Office (RO) of the Department of Veterans 
Affairs (VA) that denied the veteran's claim for service 
connection for bilateral hearing loss.  

In a June 2006 Administrative Decision, the veteran's 
character of service for the period from April 21, 1962, to 
January 14, 1965, was held to be a bar to all benefits 
administered by VA, other than health care under Chapter 17 
of United States Code Title 38 for any disabilities 
determined to be service-connected for that period.  The 
veteran's character of service for the period April 21, 1959, 
to April 20, 1962, was found to be honorable and entitlement 
was established to all benefits administered by VA for that 
period.  See 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. 
§ 3.12(d) (2007).  This unappealed determination is binding 
on the Board and the only period of service before the Board 
is from April 21, 1959, to April 20, 1962.  

The veteran's tinnitus claim is addressed in the REMAND 
portion of the decision below and is REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The veteran's bilateral hearing loss is not related to his 
period of honorable active service.  


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1131, 5303 (West 2002); 38 C.F.R. 
§§ 3.12, 3.303 (2007).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Because the application of the law to the undisputed facts is 
dispositive of this appeal, no discussion of VA's duties to 
notify and assist is necessary.  See Mason v. Principi, 16 
Vet. App. 129 (2002).  

In this case the veteran seeks service connection for 
bilateral hearing loss on the basis that he developed the 
condition as a result of a firecracker explosion near his 
face and ears in August 1962.  The veteran does not contend, 
nor does the evidence show, that his bilateral hearing loss 
is related to disease or injury that took place during his 
first, i.e., honorable, period of service.

As the RO explained, VA benefits are not payable unless the 
period of service upon which the claim is based was 
terminated by discharge or release under conditions other 
than dishonorable.  38 C.F.R. § 3.12(a).  Here, as noted in 
the introduction, in June 2006, the RO determined the 
veteran's character of service for the period from April 21, 
1962, to January 14, 1965, was a bar to all VA compensation 
benefits.  His period of service, however, from April 21, 
1959, to April 20, 1962, was found to be honorable and 
entitlement was established to all benefits administered by 
VA for that period.  This unappealed determination is binding 
on the Board and the only period of service before the Board 
is from April 21, 1959, to April 20, 1962.  

As the RO noted, an August 1962 service medical record shows 
that the veteran was hospitalized on an emergency basis for 
treatment following trauma sustained when a firecracker 
exploded.  In light of the character of the veteran's 
discharge from his second period of service, service 
connection cannot be established for bilateral hearing loss 
as due to this injury.  Thus, although the veteran submitted 
a positive nexus opinion in which he examiner diagnosed him 
as having bilateral hearing loss due to the in-service 
acoustic trauma stemming from the firecracker explosion, the 
Board agrees with the RO that service connection cannot be 
established.



ORDER

Service connection for bilateral hearing loss is denied.

REMAND

In a November 2004 rating decision, the RO denied service 
connection for tinnitus.  On his May 2005 VA Form 9, the 
veteran challenged this determination.  To date, the RO has 
not issued the veteran a Statement of the Case (SOC) with 
respect to this claim.  Under the circumstances, the Board 
has no discretion and is obliged to remand this issue to the 
RO for the issuance of an SOC.  See Manlincon v. West, 12 
Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. 
App. 433, 436 (1997).

Accordingly, the case is REMANDED for the following action:

The RO must issue the veteran an SOC 
with respect to his tinnitus claim, to 
include notification of the need to 
timely file a Substantive Appeal to 
perfect his appeal on this issue.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).


______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs