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