Citation Nr: 1300370 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-12 732 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 RO decision. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in January 2008; the hearing transcript has been associated with the file and has been reviewed. The Board remanded the matter in May 2009 and again in December 2011 for further procedural and evidentiary development. These actions have been fully accomplished. Additionally, medical opinions from the Veterans Health Administration and an Independent Medical Examiner have been obtained, and the Veteran has been properly notified of these additions to his file. Although the Board regrets the additional delay in the adjudication of this Veteran's case, the appeal must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify him if further action on his part is required. REMAND After the AMC had accomplished the actions requested by the Board in the previous remand, an August 2012 Supplemental Statement of the Case (SSOC) was issued to the Veteran. He responded with written argument dated in September 2012. This argument is substantive in nature and specifically addresses particular items in the August 2012 SSOC. Although he just recently waived original Agency of Original Jurisdiction review as to his argument, a remand is needed for additional reasons. In the September 2012 argument, the Veteran requested a copy of the January 2012 VA audiological examination and opinion for his own review. Reference to his Virtual VA file reveals that he has requested a copy of his entire claims file under the provisions of the Freedom of Information Act (FOIA). The RO was unable to provide a copy to him; however, as his paper VA file has been located elsewhere (at the AMC and at the Board) since his request was received. The Board cannot proceed with review of the Veteran's appeal until this procedural requirement has been accomplished; therefore, a remand is needed so that the AMC or the RO can satisfy the Veteran's request for information, to include providing him with a copy of the report of his January 2012 VA audiological examination; and then perform a review of his appeal to include his September 2012 written argument. Additionally, the Veteran has reported that he has received VA audiological care at "various" VA medical facilities. Although VA audiological treatment notes dating from 2001 are contained in his VA file, it is not clear whether he received earlier VA audiological care. Furthermore, earlier records have not been requested. As medical evidence pertaining to his hearing acuity closer to service would be highly relevant to his claim, the Board deems that an attempt to obtain such relevant evidence is warranted. In any case, VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO should check with the Veteran to identify whether he received VA audiological treatment prior to 2001. If so, records of such VA care should be obtained for inclusion in his claims file. 2. If additional VA audiological treatment reports dated prior to 2001 are obtained pursuant to the above request, the claims file, to include the newly-received records, should be provided to a VA audiologist for review and opinion as to whether it is more, less, or equally likely that the Veteran's bilateral hearing loss is related to service, in light of the newly-received records. 3. The Veteran's FOIA request should be fulfilled, to include providing the Veteran with a copy of the January 2012 VA audiological examination report. 4. After the development requested above has been completed to the extent possible, the RO should again review the record, to include the September 2012 written argument. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The Veteran 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 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. 2011). _________________________________________________ L. HOWELL 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) (2012).