Citation Nr: 0813566 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-13 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran had inactive duty for training (INACDUTRA) as a member of the New Mexico Army National Guard from October 1954 to April 1956, to include a two-week period of active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied service connection for bilateral hearing loss. The veteran timely filed a Notice of Disagreement in May 2006. The RO provided a Statement of the Case in January 2007 and a Supplemental Statement of the Case in April 2007. Thereafter, in May 2007, the veteran timely filed a substantive appeal. In August 2007, the veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. During the hearing, the veteran submitted additional evidence without a waiver for initial consideration by the RO. However, because the March 2007 letter essentially mirrors the veteran's testimony, the need to obtain a waiver is obviated. See 38 C.F.R. § 20.1304(c) (2007). A transcript of the hearing is associated with the claims folder. Subsequent to the Board's hearing, the veteran submitted several items of evidence directly to the Board, again without waiving initial review by the RO. However, this additional evidence is cumulative in nature in that it either consists of documents previously considered by the RO or confirms that the veteran served in the New Mexico Army National Guard. Under these circumstances, this additional evidence does not need to be referred to the RO for review. See 38 C.F.R. § 20.1304(c) (2007). The Board notes that in a March 2007 correspondence, the veteran appeared to raise an informal claim of service connection for tinnitus. This issue is not developed for appellate consideration and is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted to address the merits of the veteran's claim. 38 C.F.R. § 19.9 (2007). The veteran contends that he has a hearing loss that occurred while performing INACDUTRA as a member of the New Mexico Army National Guard in Alamogordo, New Mexico. He has also contended that the Army draft board rejected the veteran in 1958 because of a hearing loss. A July 2005 Request for Information indicates that the veteran's service records were fire-related. The United States Court of Appeals for Veterans Claims (Court) has indicated that when a veteran's records are presumed destroyed, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the requirement that the benefit of the doubt be resolved in favor of the claimant. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Gregory v. Brown, 8 Vet. App. 563, 570 (1996). Although a search for service medical records was unsuccessful, it does not appear that there has been a request for alternate sources of records. A Certificate of Service indicates that the veteran was assigned to Battery D, 120th AAA Gun Battalion (90 mm). The Board notes that the Adjutant General of New Mexico has not been contacted regarding the possibility of additional service medical records, and this should be accomplished before a final decision can be rendered. See 38 C.F.R. § 3.159(c)(2) (2007). The record does not suggest that the veteran had any problems with his hearing prior to service. An October 1954 enlistment examination indicates that the veteran was given a whispered voice test and passed with 15/15. There is private medical evidence from January 2006 of a current bilateral hearing loss. Finally, the Board notes that there appears to be some question as to the veteran's current representative in this case. The Disabled American Veterans (DAV) has filed several documents on behalf of the veteran, in addition to representing the veteran during the August 2007 hearing, but the record does not contain a power of attorney appointing the DAV as the veteran's designated representative. Clarification of this point is warranted. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VCAA notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded for bilateral hearing loss, and explain how a rating and an effective date would be determined. 2. Contact the veteran to ascertain his intentions regarding representation. He should be advised that the claims file does not contain a current VA Form 21-22 showing that the Disabled American Veterans (DAV) represents him. If he wishes to be represented by the DAV, request that he submit a properly executed VA Form 21-22. 3. Contact the Adjutant General of New Mexico to determine if additional service medical records exist for the appellant's ACDUTRA and INACDUTRA periods. If such records do exist, they should be placed in the claims file. In addition, the AMC/RO should request morning/sick reports associated with Battery D, 120th AAA Gun Battalion (90 mm) in Alamogordo, New Mexico from October 27, 1954 to April 26, 1956. 4. The RO should make an appropriate request for alternative sources for purposes of verifying that the Army draft board rejected the veteran in 1958 because of a hearing loss. 5. Obtain an authorization and release form from the veteran and take the necessary steps to obtain any records from 1964 for treatment received at Holloman Air Force Base Hospital, and associate them with the claims file. All attempts to procure records should be documented in the file. If these records cannot be obtained, a notation to that effect should be inserted in the file. 6. Upon receipt of any additional medical records, schedule the appellant for a VA audiological examination for the purposes of determining the likely etiology of any hearing loss. Following a review of the relevant evidence in the claims file and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that any hearing loss that is currently present began during or is causally linked to any period of ACDUTRA or INACDUTRA indicated by the service records, to include loud noise exposure as a machine gun operator? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 7. After the development requested above has been completed to the extent possible, readjudicate the appellant's claim. If the benefit sought on appeal is denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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). (CONTINUED ON NEXT PAGE) _________________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).