Citation Nr: 1304864 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-08 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to November 1969. Thereafter, he had service with the United States Navy Reserve with yet to be verified periods of active duty for training ("ACDUTRA") and/or inactive duty for training ("INACDUTRA") until June 1991. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida, which denied the claims. In October 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing has been associated with the Veteran's claims folder. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence for inclusion in the record. 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 The Veteran avers that his current bilateral hearing loss and claimed tinnitus are the result of acoustic trauma incurred during active and/or reserve military service. It is noted that the Veteran served as a pilot during service, and after his retirement from the Navy Reserve he worked as a commercial pilot. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claims. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) (West 2002); see also 38 C.F.R. § 3.1(d) (2012). The term "active military, naval, or air service" includes active duty; any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of INACDUTRA during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). In order to establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As noted, the Veteran served in the Navy and Navy Reserve. On remand, action should be undertaken to delineate the Veteran's service dates (to include ACDUTRA and INACDUTRA). During a previous VA examination, the VA examiner determined that the Veteran's current hearing disorders were less likely than not the result of a disease or injury during active duty service. It is unclear whether consideration was made of both the Veteran's Navy and Navy reserve service, which included exposure to noise in the field of aviation. A review of the claims folder reveals that the Veteran was found to have a right ear hearing loss for VA purposes during several Navy Reserves annual examinations. On remand, another VA examination should be conducted which takes into account the Veteran's varied periods of service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should enumerate (month, day, year) and verify all periods of active duty service, ACDUTRA and INACDUTRA. This must be clear and should consist of more than just the Veteran's retirement points. 2. The RO/AMC should prepare a formal finding memorandum regarding the presence or absence of service treatment records regarding each period of service identified. 3. Thereafter, the RO/AMC should review the claims folder to ensure that the foregoing requested development has been completed. After completion of the above, schedule the appellant for a VA examination by an appropriate provider to determine the current nature and likely etiology of hearing loss and tinnitus. The claims file must be made available to (and include the Veteran's verified service dates), and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. The examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current bilateral hearing loss and tinnitus is causally or etiologically related to noise exposure during the appellant's periods of active duty, ACDUTRA, and INACDUTRA in the Navy and Navy Reserve service as a pilot as opposed to its being more likely due to some other factor or factors to include post-service occupational noise as a commercial pilot. Please identify the date of onset if possible. The rationale for each opinion expressed must also be provided. If the required opinions cannot be provided, the physician should explain why. 5. The issues on appeal should be readjudicated. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished s Supplemental Statement of the Case and afforded the opportunity to respond thereto. The case should then be returned to the Board, if in order, for further appellate process. The appellant 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. 2012). _________________________________________________ K. PARAKKAL 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).