Citation Nr: 1007165 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-06 400 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for bilateral defective hearing. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision by the RO which denied service connection for bilateral defective hearing. In December 2009, a hearing was held at the RO before the undersigned member of the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he was told that he had bilateral hearing loss at the time of his service separation examination in 1968, but that he wanted to go home and refused treatment at that time. He testified that he was employed in several different jobs involving noise exposure subsequent to service, including with a manufacturing company, trash collection, and as a policeman. He said that he went to the police academy in 1974, and that he worked full- and part-time as a policeman off and on into the early 1990's. He testified that he never sought medical attention for any hearing problems until his private doctor recommended that he have a hearing test sometime in the 1980's. He reported that a private audiological examination at that time showed that he had bilateral hearing loss and needed hearing aids, but that they were not covered by his insurance and he could not afford to purchase them. He said that he had additional hearing examinations in the 1990's, which confirmed his hearing loss, but that he was unable to obtain any of those records. An August 2006 private audiological examination report, received in September 2008, showed that the Veteran had significant hearing loss bilaterally, which the audiologist opined was caused by acoustic trauma from his exposure on the firing range in service. In order to establish service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, information from the National Personal Records Center (NPRC), received in February 2005, indicated that the Veteran's service treatment records could not be located and were unavailable. Where service treatment records are absent or missing, there is a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. The case law does not, however, lower the legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). In this regard, the Board notes that prior to the hearing in December 2009, the Veteran had never mentioned or provided VA with any information concerning his post-service employment history or his alleged hearing examinations in the 1980's and 1990's. Although the Veteran testified that he was not given a physical examination when he was hired by the manufacturing company shortly after service, it seems likely he would have been given a physical examination when he was accepted into the police academy and, presumably would have had some type of hearing tests or physical examinations during his many years of employment as a police officer. The existence of any such records or reports would be material to his claim. Therefore, an attempt should be made to obtain all available records. In light of the discussion above and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the AMC for the following action: 1. The AMC should take appropriate steps to contact the Veteran and obtain the names and addresses of all healthcare providers who treated him for any hearing problems since his discharge from service. The Veteran should also be asked to provide the names and addresses of the police academy he attended in 1974, and all of the police forces where he was employed. After the Veteran has signed the appropriate releases, the AMC should attempt to obtain all identified records, including any records from the Collinsville, Texas police force, and associate them with the claims file. All attempts to procure records should be documented in the file. 2. Based on the evidence obtained, the AMC should undertake any additional development deemed necessary, to include obtaining a VA audiological evaluation to determine the nature and etiology of any identified hearing loss. The claims folder and a copy of this remand should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished. The audiologist should provide an opinion as to whether it is at least as likely as not that any existing hearing loss was caused by acoustic trauma in service. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. If the examiner is unable to render a determination as to the etiology, she/he should so state and indicate the reasons. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefits sought on appeal remain denied the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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. 2009). ____________________________________________ MICHAEL KILCOYNE 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) (2009).