Citation Nr: 1000133 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-10 244A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability rating in excess of 10 percent for shrapnel scars on back. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2006, a statement of the case was issued in March 2007, and a substantive appeal was received in April 2007. In October 2009, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. The Board notes that during the October 2009 Board hearing, the Veteran testified that he believed he warranted entitlement to an earlier effective date for his service- connected degenerative disc and joint disease, lumbar spine. This matter is referred to the RO for clarification and any necessary action. Moreover, although reference to a disorder in medical records alone does not constitute a claim for VA benefits, the Board believes that medical evidence that is specifically developed in connection with a VA claim may reasonably raise a possible claim for additional benefits. In this case, the medical evidence suggests a possible retained foreign body. Although service connection has been established for degenerative disc and joint disease as well as for scars, both due to shrapnel wounds, it would appear that the possibility of a separate rating for muscle injury has been raised. This matter is referred to the RO for clarification and any necessary action. With regard to the issue of a higher rating for shrapnel scars on the back, the Board notes that new rating criteria are applicable to claims filed on or after October 23, 2008. See 38 C.F.R. § 4.118 (2009). The Veteran's claim was filed prior to this date, so the previous rating criteria for scars are applicable to the present appeal. However, the Board directs the Veteran's attention to the fact that he may request review under the new rating criteria to determine if he is entitled to a higher rating under such new criteria. The issue of entitlement to service connection for bilateral hearing loss 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. FINDINGS OF FACT 1. The Veteran's current tinnitus is causally related to noise exposure during active military service. 2. The Veteran's service-connected shrapnel scars on back is manifested by 10 to 12 scattered scars lateral to his thoracolumbar spine ranging from a few millimeters (mm.) to 2 inches (in.) in size, no limitation of motion or loss of function, underlying soft tissue damage, no skin ulceration or breakdown over the scar, and tenderness on palpation. CONCLUSIONS OF LAW 1. Tinnitus was incurred during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. The criteria for a disability rating in excess of 10 percent for shrapnel scars on back have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify and assist claimants. The Board notes initially that, because the Veteran's claim of service connection for tinnitus is being granted in this decision, any VCAA notice or assistance errors are rendered moot, and VCAA issues (with regard to the Veteran's tinnitus claim) are addressed in the service connection section. I. Notice The VCAA provides that VA has a duty to notify claimants of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in August 2006. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence, as well as provided notice regarding disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from a rating decision granting service connection and assigning an initial rating. Consequently, Vasquez- Flores is inapplicable. Furthermore, the Board notes that the United States Court of Appeals for the Federal Circuit recently vacated the holding of the Veteran's Court in Vazquez-Flores, which required the VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). II. Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records and VA treatment records are on file. The Board notes that the Veteran stated that he received treatment from the West Palm Beach VA Medical Center for his back shortly after being discharged from active duty service. The Board finds that these records would not affect the Board's decision with regard to the Veteran's claim for entitlement to a disability rating in excess of 10 percent for shrapnel scars on back, since the Veteran's claim was not received by VA until July 2006. There is no indication of relevant, outstanding records which would be pertinent to the Veteran's current rating claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran was afforded a VA examination in September 2006. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report is thorough and contains sufficient information to decide the issue on appeal. Thus, the Board finds that further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist him have been fulfilled with respect to the issue of entitlement to a disability rating in excess of 10 percent for shrapnel scars on back and the appellant is not prejudiced by a decision on the claim at this time. The matter of VCAA compliance with regard to the tinnitus issue is discussed later in this decision. Service Connection The Veteran is seeking entitlement to service connection for tinnitus, which he contends began during active duty. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran contends that he is entitled to service connection for tinnitus as a result of acoustic trauma experienced during active duty. The Veteran's DD Form 214 states that his military occupational specialty in service was as a rifleman, and he received numerous awards and medals including the Combat Action Ribbon and the Purple Heart Medal. In September 2006, a VA examination was administered in connection with this appeal, as well as for entitlement to service connection for bilateral hearing loss. The examiner reviewed the Veteran's claims file. During this examination, the Veteran reported that his in-service noise exposure included artillery shells and machine guns, and he denied using hearing protection. The Veteran reported post-service noise exposure including heavy equipment noise in construction work and tractors and trailers. The Veteran reported constant bilateral tinnitus. The Veteran was unsure about the onset of his tinnitus, but stated that it began in the late 1970's. The examiner concluded that the Veteran's tinnitus was not caused by or a result of his exposure to artillery shells and machine gun fire, given that there was no documentation of tinnitus or ear infections in the claims file. During his October 2009 Board hearing, the Veteran provided testimony regarding his claimed tinnitus. The Veteran testified that his tinnitus had its onset during service, and that he often experienced tinnitus while in combat. The Veteran stated that during service he incurred significant noise exposure, including heavy artillery, mortars, tanks, helicopters, planes dropping bombs, and machine gun fights. The Veteran testified that he did not complain about hearing loss during service because he was trying to stay alive. The Veteran stated that his tinnitus is constant. The Board observes that the Veteran's DD Form 214 indicates that he served in combat, and the Veteran reported the he incurred acoustic trauma during active duty. The Board finds the Veteran's statements to be credible, and the Board finds it reasonable to accept that the Veteran was exposed to significant acoustic trauma during service. The Board notes that the examiner from the September 2006 VA examination stated that the Veteran had a history of tinnitus, and concluded that the Veteran's tinnitus was not related to his military noise exposure. The Board is somewhat troubled by the inconsistency between what the Veteran told the September 2006 examiner regarding the time of onset of tinnitus and what he testified to at the 2009 Board hearing. However, the Board testimony was taken under oath, and the Board finds no compelling reason to conclude that he was not truthful in giving sworn testimony. Moreover, the Veteran is competent to describe his exposure to loud sounds, and he is also competent to testify as to his experience of ringing in the ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (providing that ringing in the ears is capable of lay observation). In this case, the Board is presented with an evidentiary record which is not entirely clear. Given the military documentation of his specialty and combat experience, the Board finds that the Veteran incurred noise exposure during service. With regard to a nexus to service, the Veteran's statements regarding the discovery of tinnitus during service and experiencing tinnitus since service also appear to be credible. The Board is unable to find that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for tinnitus. The available evidence appears to be at least in a state of equipoise regarding a nexus to service. Consequently, the benefit-of-the-doubt rule applies, and service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In closing, there is no need to undertake any review of compliance with the VCAA and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The Board also notes that RO letters in July 2006, August 2006, and June 2008 informed the Veteran of the manner in which disability ratings and effective dates are assigned. Should the Veteran disagree with the RO's actions in this regard in effectuating the grant of service connection, he may always initiate an appeal with a timely notice of disagreement. Increased Rating Briefly, the Veteran contends that the severity of his service-connected shrapnel scars on his back warrants a higher disability rating. This disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The applicable rating criteria for skin disorders, to include scars, are found at 38 C.F.R. § 4.118. During the pendency of this appeal for an increased rating, the criteria for evaluation of scars were amended as of October 23, 2008. However, the revisions are applicable to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Here, VA received the Veteran's claim in July 2006. Therefore, only the pre- October 2008 version of the schedular criteria is applicable in this case. Diagnostic Code 7800 rates scars of the head, face, or neck based upon disfigurement, and does not apply in this case as the service-connected scar is located on the Veteran's back. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides a 10 percent evaluation for scars that are superficial and painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See 38 C.F.R. § 4.68 of this part on the amputation rule.) Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Veteran was afforded a VA examination for his shrapnel wound in September 2006. Physical examination of the Veteran showed 10 to 12 scattered scars lateral to his thoracolumbar spine ranging from a few mm. to 2 in. in size. The maximum width of the largest scar was 2 in., and the maximum length of the largest scar was 1 in. The Veteran reported tenderness on palpation. The examiner found adherence to the Veteran's underlying tissue, no limitation of motion or loss of function, underlying soft tissue damage, and no skin ulceration or breakdown over his scar. An x-ray of the Veteran showed a small grouping of nodular densities within the left midlung laterally with the nodular densities measuring up to 6 mm. The examiner stated that the lateral view x-ray suggested a posterior mediastinal mass measuring 4.9 centimeters (cm.) by 3.7 cm. The examiner further stated that a 6 mm. possibly metallic foreign body was located within the soft tissues of the left hemithorax laterally. VA treatment records show that the Veteran was seen on numerous occasions for back pain related to residuals of his shrapnel wound and scars. The Veteran is currently in receipt of the maximum rating for scars under Diagnostic Codes 7802, 7803, 7803, and 7804. Therefore, increased ratings are not possible under these Diagnostic Codes. Additionally, as noted above, Diagnostic Codes 7800 is inappropriate as the Veteran's service- connected scars are located on his back. Furthermore, Diagnostic Codes 7801 is inapplicable as the medical evidence does not suggest that the Veteran's scars exceed 77 sq. cm. The Board also notes that the RO granted service connection for degenerative disc and joint disease, lumbar spine associated with shrapnel scars on back in a July 2007 rating decision. Therefore, Diagnostic Code 7805 is not appropriate, as the Veteran's limitation of function has already been separately evaluated. See also 38 C.F.R. § 4.14. In light of the foregoing, the Board is unable to find that the medical evidence of record supports assignment of a disability rating greater than 10 percent for the Veteran's service-connected shrapnel scars on back. Thus, a disability rating greater than 10 percent under Diagnostic Codes 7800 through 7805 is not warranted. Furthermore, there are no other alternative diagnostic codes under 38 C.F.R. § 4.71a that could apply to the Veteran's service-connected shrapnel scars on back. In addition, staged ratings are not applicable, since at no point did the Veteran's shrapnel scars on back approximate the criteria for a higher rating. Fenderson v. West, 12 Vet. App. 119 (1999). The Board also recognizes that, in general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the medical evidence and the symptoms described by the Veteran fit within the criteria found in Diagnostic Codes 7801 through 7805. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a disability rating in excess of 10 percent. ORDER The appeal is denied in part and granted in part (subject to laws and regulations applicable to payment of VA monetary benefits) as follows: Entitlement to service connection for tinnitus is warranted. Entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected shrapnel scars on back is not warranted. REMAND Briefly, the Veteran contends that he is entitled to service connection for bilateral hearing loss as a result of acoustic trauma incurred during active duty. As noted above, the Board concedes that the Veteran incurred noise exposure during service. The record shows that the Veteran incurred in-service shrapnel wounds as a result of incoming enemy grenades. Veteran contends that he incurred significant noise exposure during this incident as well as on other occasions during service, and that this noise exposure during service affected his hearing. Additionally, the record shows that the Veteran received the Combat Action Ribbon and the Purple Heart Medal; therefore, the provisions of 38 U.S.C.A. § 1154(b) are applicable. Under 38 U.S.C.A. § 1154(b), VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran. See also 38 C.F.R. § 3.304(d). In September 2006, the Veteran underwent a VA medical examination in connection with this appeal. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, and the Veteran met the criteria for hearing loss disability for VA purposes in both ears. The examiner concluded that the Veteran's bilateral hearing loss was not caused by or the result of his in-service exposure to artillery shells and machine gun fire, given that the Veteran passed his separation whisper examination, and that he would have not passed the whisper examination with his current hearing loss disability. The examiner also opined that the Veteran's mastoid surgery in the 1970's was the cause of his complete loss of hearing in the right ear. Unfortunately, the Board finds that the September 2006 VA opinion is inadequate. The Board notes at this point that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Veterans Appeals (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Therefore, further action at the RO level is necessary to remedy this deficiency. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Lastly, the Board notes that the Veteran testified in October 2009 that he received treatment for his hearing from the West Palm Beach VA Medical Center shortly after being discharged from active duty service. The Board observes that these VA treatment records (around 1970) are not associated with the claims file. Thus, it appears that the Veteran may have received relevant treatment from the VA healthcare system, that some of the associated treatment records are not in the claims file, and that the treatment records would be pertinent to his claim. VA is required to obtain VA treatment records relevant to the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). As such, the RO should obtain VA treatment records relevant to the appeal. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any VA treatment records (not already of record) relevant to the appeal, specifically including treatment from the West Palm Beach VA Medical Center since December 1969. 2. The RO should schedule the Veteran for a VA audiological examination to ascertain the nature and etiology of his claimed bilateral hearing loss. It is imperative that the claims folder be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether any bilateral hearing loss identified is at least as likely as not (i.e., 50 percent or higher degree of probability) related to his active duty service or any incident therein. The examiner should assume that the Veteran did in fact suffer acoustic trauma during service. All opinions and conclusions expressed must be supported by a complete rationale. 3. After completion of the above, the RO should review the record and determine if the hearing g loss claim can be granted. The provisions of 38 U.S.C.A. § 1154(b) should be applied as appropriate. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs