Citation Nr: 1305291 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 12-25 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from June 1953 to May 1955. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Veteran requested a Board videoconference hearing; however withdrew such request in January 2013. 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 Veteran if any action on his part is required. REMAND At the outset, a review of the claims file indicates that the Veteran's service personnel records likely were destroyed in the July 1973 fire at the National Personnel Records Center in St. Louis, Missouri (NPRC). The United States Court of Appeals for Veterans Claims has held that, in cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. In a March 2011 statement, the Veteran stated that he attended weapons training assignments on a regular basis without any ear protection. He indicated that prior to joining the military he worked as a milkman. He also stated that none of his postservice occupations have been in noisy environments. The Veteran's service treatment records are silent for bilateral hearing loss or tinnitus. Entrance and separation examinations document 15/15 for bilateral hearing evaluations. The Veteran's DD-214 documents his military occupational specialty (MOS) as a Personnel Administration Specialist. A May 2011 VA audiometric study shows normal bilateral hearing. In his February 2012 notice of disagreement, the Veteran stated that his personnel records would have documented his foreign service. He indicated that his unit was stationed in Vienna, Italy for a period of time; where he was exposed to loud noises on a daily basis. He stated that he has experienced significant hearing loss and ringing in his ears since his separation from service. In February 2012 statements, the Veteran's brother and sister reiterated that the Veteran's hearing was noticeably impaired after his separation from service. In his September 2012 substantive appeal, the Veteran reiterated his contentions. He also stated that his MOS involved additional duties. As noted, there is a VA audiometric study associated with the claims file; however, it is unclear whether or not it was done in accordance with a VA examination. Moreover, the May 2011 rating decision does not refer to the Veteran having been examined. The Board finds that further development is necessary. VA has a duty to assist a claimant in obtaining evidence, including the procurement of pertinent records and providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The duty to assist has not been met. The Board finds that the Veteran has not yet been afforded a VA examination for his claimed bilateral hearing loss and tinnitus. As a result, no medical opinion has been obtained regarding the nature and etiology of the claimed bilateral hearing loss and tinnitus. Given the Veteran's contentions regarding his claimed bilateral hearing loss and tinnitus, and given VA's heightened due to assist the Veteran owing to the loss of his service personnel records in the July 1973 fire at the NPRC, the Board finds that, on remand, he should be scheduled for VA examination which addresses the nature and etiology of the claimed bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Finally, the Veteran has not identified any outstanding treatment records. In fact he stated in a January 2013 letter that he had nothing else to submit. As such, there is no need to obtain any additional treatment records. Accordingly, the case is REMANDED for the following: (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. Afford the Veteran a VA examination for bilateral hearing loss and tinnitus. The claims folder must be provided to the examiner for review. The examiner should review the claims file and the examination report should note that the claims file was reviewed, including service treatment records. He or she must also obtain a detailed history from the Veteran, including his exposure to noise in service and after service, and should obtain information about how and when tinnitus began. All current hearing disorders should be noted. For each hearing disorder diagnosed, the examiner should specifically offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the hearing loss is causally or etiologically related to service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of continuity of symptomatology. In particular, review the lay statements as they relate to the development of the Veteran's hearing loss and tinnitus and provide information as to how the statements comport with generally accepted medical norms. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 3. After the above action has been completed, readjudicate the claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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 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). _________________________________________________ MARJORIE A. AUER 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).