Citation Nr: 1045167 Decision Date: 12/02/10 Archive Date: 12/10/10 DOCKET NO. 06-14 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression (claimed as anxiety, depression and nightmares). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a request to reopen the Veteran's bilateral hearing loss claim. The RO subsequently readjudicated that claim in September 2006 and the Veteran timely appealed the issue. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in June 2009; a transcript of that hearing is associated with the claims file. This claim was initially before the Board in August 2009. At that time, the Veteran's bilateral hearing loss claim was reopened and denied. The Board has subsequently determined in a separate Order to Vacate that the Veteran was denied due process of law as to the adjudication of his bilateral hearing loss claim. This decision represents a readjudication of that claim. The determination that new and material evidence had been received to reopen the hearing loss claim, and also a denial of a claim for diabetes mellitus, which was also issued by the Board in August 2009, was not disturbed by the Order to Vacate. The issues of entitlement to service connection for posttraumatic stress disorder (PTSD), ischemic heart disease, and a skin condition of the feet, as well as entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Again, the August 2009 Board decision reopened the claim of service connection for bilateral hearing loss. Due to the Order to Vacate accompanying the instant decision, the August 2009 denial of service connection for hearing loss on the merits effectively never occurred, and the analysis in the instant decision addresses this issue at present. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board has determined that additional development is required with respect to all issues on appeal. Regarding the Veteran's hearing loss claim, a new examination is required. Indeed, a VA examination was conducted in August 2006, at which time the VA examiner opined that the Veteran's hearing loss was not due to his military service due to normal findings at induction and separation. However, the VA examiner's opinion fails to address a June 2006 VA treatment note that specifically indicated that the Veteran has bilateral sensorineural hearing loss and was exposed to loud aircraft noise in service, and that such hearing loss occurs as a result of exposure to such noise. That June 2006 note specifically stated that such factors should be considered in the Veteran's VA examination. Moreover, the Veteran has submitted an April 2009 private audiologist's opinion which states that his hearing loss is due to the hazardous noise exposure during military service. Neither the June 2006 treatment note nor the April 2009 letter indicated that either of those professionals reviewed the claims file, and neither of those professionals noted the Veteran's audiometric scores at induction and separation. Accordingly, that evidence does not, standing alone, enable a grant of service connection at present. However, such evidence raises the possibility of a causal relationship and therefore those documents must be considered by a VA examiner. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Additionally, the Veteran submitted an April 2010 notice of disagreement, in which he challenged the denial of service connection for his anxiety and depression in an April 2010 rating decision. Likewise, the Veteran filed a notice of disagreement in May 2010, in which he contested the denial of service connection for tinnitus in a May 2010 rating decision. No statements of the case have been issued as to those issues. Accordingly, VA has a duty to issue a statement of the case on those issues so that the Veteran may complete an appeal by filing a Substantive Appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, a remand is necessary as to these issues. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Undertake all actions required by 38 C.F.R. § 19.26 (2010), including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal on his claims of service connection for an acquired psychiatric disorder, to include anxiety and depression, and to reopen service connection for tinnitus (if he so desires) by filing a timely substantive appeal. The issues should be returned to the Board only if timely substantive appeals are received. 2. Request the Veteran to identify any private or VA treatment for his bilateral hearing loss since March 2006. 3. Relevant VA treatment records from the San Antonio VA Medical Center since March 2006 should be obtained and associated with the claims file. If the Veteran identifies any private treatment records, and after the necessary release forms have been obtained, VA should attempt to obtain and associate with the claims file all identified records. If VA is unable to obtain any identified records, such should be noted in the record and the Veteran informed so that he may attempt to obtain those records on his own behalf. 4. Once the above development is completed to the extent possible, schedule the Veteran for a VA audiological examination with a VA audiologist in order to determine the nature and etiology of the claimed bilateral hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the file and examination of the Veteran, the examiner should opine as to whether any bilateral hearing loss is more likely, less likely or at least as likely as not (50 percent probability or greater) arose during service or is otherwise related to active service. When rendering an opinion, the VA examiner is asked to specifically discuss the Veteran's exposure to aircraft noise, and any other noise in service. The opinions expressed in the June 2006 VA treatment note and the April 2009 private audiologist's letter should also be considered. All opinions must be accompanied by a clear rationale. If the examiner determines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for bilateral hearing loss. If the benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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) (2010).