Citation Nr: 1303240 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-46 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from August 1944 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that, in pertinent part, denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. In December 2012, the Veteran and his daughter testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The Veterans Law Judge agreed to hold the record open for 30 days to allow the Veteran an opportunity to submit additional evidence. In December 2012, he submitted additional evidence in support of his claims, with a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As a preliminary matter, the Board notes that the most recent VA treatment records associated with the claims file are dated in February 2009. On remand, the AMC must obtain any updated VA treatment records and associate such with the claims file. At the time of his original May 2008 claim, the Veteran identified four private treatment providers as sources of relevant treatment records. Such records were obtained and associated with the claims file; however, they are silent for any complaint, treatment, or diagnoses related to bilateral hearing loss or tinnitus. At the time of his Board hearing, the Veteran provided a somewhat confusing account of his past treatment for bilateral hearing loss and tinnitus. It appears that he reported that three to four years prior, he was evaluated at a private hospital. He also reported that while he does not wear hearing aids, his audiological treatment has been at the VA Medical Center (VAMC) in New Orleans, Louisiana. He could not provide a time period for the claimed VA treatment. Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and the AMC/RO should attempt to clarify the Veteran's treatment history and obtain any identified records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran asserts that he experienced bilateral hearing loss and tinnitus during service, related to acoustic trauma incurred aboard ships during World War II. In a May 2010 request for a VA examination, the RO conceded acoustic trauma and requested a medical opinion as to whether the Veteran's current bilateral hearing loss and tinnitus were related to service, including his in-service acoustic trauma. The Veteran failed to appear to May 2010 and September 2010 VA examinations. An August 2010 informal conference report indicates that the Veteran was hospitalized during the scheduled May 2010 VA examination. At the time of his Board hearing, he asserted that he could not drive to New Orleans for the September 2010 VA examination and did not request the help of his daughter to attend the examination; however, he reported that he would attend any future VA examination and his daughter reported that she would assist him in doing so. Thus, the Board finds that a VA examination is in order to determine whether the Veteran's current bilateral hearing loss and tinnitus are related to service, including his in-service acoustic trauma, and the Veteran should be provided another opportunity to appear for such. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file treatment records from the VAMC in New Orleans, Louisiana, dated both prior to February 2007 and after February 2009. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Contact the Veteran and request specific information regarding private audiological testing that he underwent in 2008 or 2009. Provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA, and request that he identify any outstanding relevant private treatment records. Advise the Veteran that he may submit such records if he so chooses. Obtain any identified and authorized private treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 3. Schedule the Veteran for a VA examination to determine the etiology of his current bilateral hearing loss and tinnitus. The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's current bilateral hearing loss and tinnitus were incurred in service, or are otherwise related to service, including his conceded in-service acoustic trauma. In this regard, the examiner should consider the Veteran's statements regarding any in-service noise exposure and diminished hearing acuity and tinnitus, and the Veteran's statements of continuous symptoms of hearing loss and tinnitus after service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims folder must be made available to the examiner for review and its availability should be noted in the opinions that are provided. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The Veteran should be advised of the consequences of his failure to report for any scheduled examination, pursuant to 38 C.F.R. § 3.655 (2012). The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. Then, readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide him and his representative with a Supplemental Statement of the Case (SSOC) and allow him an appropriate opportunity to respond thereto. Thereafter, return the case 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). These claims 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. 2012). _________________________________________________ S. L. Kennedy 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).