Citation Nr: 1305641 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-34 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a broken right ankle. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and observer, O. O. ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Appellant served on active duty from August 2002 to July 2003. He served in the Army National Guard in Indiana from March 1966 to October 1981 and with the Army National Guard in Texas from November 1981 to January 2006 with verified periods of active duty for training (ACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board in April 2011. A transcript of that hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. The issues of entitlement to service connection for hearing loss, tinnitus and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The probative weight of the evidence does not demonstrate a current diagnosis of a broken right ankle or that a broken right ankle was incurred during a period of active service or ACDUTRA. CONCLUSION OF LAW The criteria for the establishment of service connection for a broken right ankle are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Veterans Claims Assistance Act (VCAA) Under the VCAA, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Appellant was provided notice of the VCAA in May 2008. The VCAA letters indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Appellant and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Appellant also received notice in May 2008, pertaining to the downstream disability rating and effective date elements of his claims and was furnished a statement of the case (SOC) in August 2009 with subsequent re-adjudication in an October 2012 SSOC. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue of service connection for a right ankle disability on appeal has been identified and obtained to the extent possible. The evidence of record includes service treatment records, service personnel records, private medical records, a lay statement and statements and testimony from the Appellant. The Appellant has not been afforded a VA examination in connection with the broken right ankle claim. The Board finds that such an examination or a medical opinion is not necessary. The only post-service evidence of a broken right ankle or any signs or symptoms of this disability consist of the Appellant's lay statements regarding his original injury in service. The Appellant has not specified any current right ankle disability and his April 2011 testimony only indicated that his right ankle had "bothered" him for a long time and was "messed up." Private treatment reports of record also do not reflect any diagnosis or treatment related to the right ankle. Given that the Appellant does not, and has not received treatment for the right ankle, and the record does not indicate that a right ankle disability has been diagnosed, the Appellant does not have a broken right ankle or residuals thereof after service. In the absence of diagnosed right ankle disability or signs or symptoms of same after service, the Board finds that a VA examination or opinion is not necessary in this case. This case was previously remanded by the Board in December 2011 to obtain any outstanding medical records and to locate service personnel and treatment records from the Appellant's National Guard service. As the Appellant provided additional private medical records in March 2012 pursuant to a January 2012 request, the Indiana State Adjutant General's Office provided additional service records upon request and negative responses were received from the Texas State Adjutant General's Office and the Records Management Center, the development requested by the December 2011 remand has now been satisfactorily completed and substantially complied with respect to the claim for service connection for a broken right ankle. Stegall v. West, 11 Vet. App. 268 (1998). While the Board's remand below includes instructions to obtain additional service treatment records, if available, such action is not prejudicial to the Appellant's claim for service connection for a broken right ankle, because there is no evidence of a current right ankle disability and the Appellant has specified that a right ankle injury occurred in 1985, for which period service records have been obtained and associated with the record. The Appellant has not indicated that he has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Appellant and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). The Merits of the Appeal Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). The Court has held that regulations concerning presumptive service connection, the presumption of soundness and the presumption of aggravation were inapplicable to claims based upon ACDUTRA and INACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). If "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period ACDUTRA, the presumption of soundness only, will apply to a period of ACDUTRA. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. In statements and testimony presented throughout the duration of the appeal, the Appellant has maintained that he has a broken right ankle disability which is related to his period of ACDUTRA in 1985. Service personnel records reflect that the Appellant had several periods of ACDUTRA throughout his service with the National Guard in both Indiana and Texas, including in 1985 for the period from July 31, 1985 to August 17, 1985. Service treatment records reflect that the Appellant injured his left ankle in August 1985 during a period of ACDUTRA. An August 1985 service treatment report demonstrates that the Appellant was treated in the orthopedic clinic at the Darnall Army Hospital in Fort Hood, Texas, for the left ankle. At that time, a review of the left ankle X-rays demonstrated findings of a bony bridge over the medial malleolus to talus on the right, noted as an old injury. Earlier in the report, the service treatment provider also referred to a history of fracture of the left ankle. However, there are no service treatment records demonstrating any findings related to a broken right ankle or right ankle injury during this time. In a June 1987 report of medical history, the Appellant also reported a history of broken bones, which he specified as a fracture of the right ankle at Fort Hood with treatment in 1985. However, the contemporaneous service treatment records demonstrate that the Appellant had been treated for the left ankle at the Darnall Army Hospital in Fort Hood, Texas, in 1985, and not the right ankle. Private treatment reports from April 2003 to August 2009 are absent of any complaints, findings or treatment related to the right ankle. In his May 2008 Application for Compensation and/or Pension, the Appellant reported he sustained a broken right ankle on September 4, 1985, for which he was treated at the Darnall Army Hospital in Fort Hood, Texas. The evidence is also consistent in that the Appellant had an incident involving his left, and not right ankle. In a May 2010 RO hearing, the Appellant testified that his right ankle injury occurred while on an "active, two week" drill in 1985 during a period of ACDUTRA and he was taken to the Darnall Army Hospital for treatment. He also reported that his current right ankle symptoms included pain and some swelling. During an April 2011 Travel Board hearing, the Appellant initially reported that he could not give information on the right ankle because the left ankle was his real problem and that occurred in 1985 in Fort Hood, Texas. His representative also reported he had memory problems due to his having four strokes. The Appellant's representative stated that he did not see any record in the service treatment reports of a fracture to the right ankle or any right ankle symptoms. The Appellant stated that he did not remember a specific time when he hurt his right ankle while he was on active duty. He also stated that his right ankle had bothered him for a long time and that both his right and left were "pretty messed up." The Appellant's representative reported that an August 1985 service treatment report discussed the Appellant's status post trauma left ankle and noted that "X-rays reveal[ed] bony bridge over medial malleolus to talus of right" and that there was an old injury that may have been a broken bridge. He interpreted this report to reflect that the X-rays indicated some type of trauma to the right ankle in 1985. In a March 2012 statement, a friend of the Appellant's, P.E.Z., reported that he had known and worked with the Appellant for over 23 years. He stated that he remembered the Appellant complained of injuring his right ankle upon returning from annual training and he did not do any physical training for a long period afterwards due to his right ankle pain and aggravation. Service connection for a broken right ankle is not warranted as the preponderance of the evidence is against this claim. While the Appellant had a left ankle injury in August 1985 during a period of ACDUTRA, there are no service treatment reports demonstrating an injury to the right ankle and there is no probative objective evidence of a current right ankle disability. Although at the time of treatment for the left ankle in service, in 1985, left ankle X-rays demonstrated findings of a bony bridge over the medial malleolus to the talus on the right, noted as an old injury, this finding does not indicate the X-rays were taken of the right ankle and the notation of the "right" in this case does not specify the right ankle, rather it notes the location of the bony bridge over the medial malleolus to the talus of the left ankle. There is no indication in the service treatment reports that X-rays were also taken of the right ankle during the Appellant's treatment of the left ankle. In addition, earlier in the same report, the service treatment provider also referred to a history of fracture of the left ankle. In addition, there are no service treatment records demonstrating any findings related to a broken right ankle or right ankle injury during this time. While the June 1987 report of medical history, also provided during a period of ACDUTRA from June 24 1987 to July 11, 1987, reflects that the Appellant also reported a history of a fracture of the right ankle at Fort Hood with treatment in 1985, the contemporaneous service treatment records from 1985 demonstrate that the Appellant had been treated for the left ankle only at the Darnall Army Hospital in Fort Hood, Texas in 1985, and not the right ankle. With respect to the Appellant's statements and testimony and the lay statement of P.E.Z., that he injured his right ankle during a period of ACDUTRA in 1985, both are competent to report witnessing the injury and the Appellant's related complaints of the injury to the right ankle during his ACDUTRA in 1985. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Appellant is not competent to relate any right ankle injury in service to any current right ankle disability, which has not been diagnosed by a medical professional, as this would constitute a medical conclusion which he is not competent to make. See id. The lay statements by the Appellant and P.E.Z. while competent, are not credible evidence as they are internally inconsistent and are inconsistent with the contemporaneous medical evidence of record. In making a determination, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As to some of the factors that go into making these determinations both the Veterans Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). The lay statements of a right ankle injury in service are inconsistent with the contemporaneous service records in 1985, which demonstrate that the Appellant only injured his left ankle during a period of ACDUTRA that year and, as noted above, there are no service treatment records demonstrating complaints or findings with respect to the right ankle at any time during this period. Therefore, the lay statements are inconsistent with the contemporaneous service records demonstrating treatment for the left ankle only. Moreover, the Appellant himself most recently reported in the April 2011 Travel Board hearing that he could not give information on the right ankle because the left ankle was his real problem and that occurred in 1985 in Fort Hood, Texas. At that time, the Appellant's representative also reported he had memory problems due to four strokes and the representative did not see any record in the service treatment reports of a fracture to the right ankle or any right ankle symptoms. Finally, the Appellant then testified that he did not remember a specific time when he hurt his right ankle while he was on active duty. Thus, the Appellant's post-service accounts of his in-service right ankle injury are internally inconsistent. Accordingly, these lay statements of record are afforded little probative value. There is no medical evidence of a current right ankle disability. The private medical records from April 2003 to August 2009 are absent of any complaints, findings or treatment related to the right ankle. In addition, the Appellant's testimony in the May 2010 RO hearing indicated that his current right ankle symptoms included pain and some swelling but did not indicate any diagnosis or treatment of a right ankle disability. He also reported in the April 2011 Travel Board hearing that his right ankle had bothered him for a long time and that both his right and left ankles were "pretty messed up." However, he did not report that any right ankle disability had been treated or diagnosed by a medical provider. Therefore, the most probative evidence of record demonstrates that there is no objective medical evidence of a current right ankle disability of record. The Court has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). The probative evidence of record clearly demonstrates that the Appellant does not have a current diagnosis of a right ankle condition at any time during the pendency of his claim. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a broken right ankle is denied. REMAND The Board is cognizant of the further delay that will result from this action. However, subsequent to the Board's last remand in December 2011, it appears that additional service records may still be outstanding as to all remaining claims and a VA examination may be necessary with respect to the issues of service connection for hearing loss and tinnitus. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). These duties require VA to assist claimants with the evidentiary development of pending claims. The claims file reflects that service personnel records from 1989 to January 2006 as well as service treatment records from October 2001 to January 2006 are still outstanding, the Board must remand the case for additional evidentiary development. In accordance with Washington v. Nicholson, 19 Vet. App. 362 (2005) and 38 C.F.R. § 3.159(c)(2), VA must ensure that all available records are associated with the record. The record demonstrates that the Appellant has extensive service with the Army National Guard in Indiana from March 1966 to October 1981 and with the Army National Guard in Texas from November 1981 to January 2006, but the claims file does not reflect complete records from that service or records from his active duty service from August 2002 to July 2003. Specifically, there are only a few service treatment records from the Appellant's Army National Guard service in Texas after October 2001, including from his period of active service from August 2002 to July 2003. These records do not include any entrance or separation examination from the Appellant's period of active service and include an incomplete pre-deployment health assessment. While there are no service personnel records Texas Army National Guard service after 1989, including any specified periods of ACDUTRA (and although the Appellant served until January 2006) his records indicate he served full time in the National Guard, with only one mobilized service period from August 2002 to July 2003. The RO must submit inquiries to the appropriate record repositories, as specified in the remand instructions below, in an attempt to locate the Appellant's complete service (active and reserve) treatment records. The RO/AMC must determine whether or not the Appellant's entire, available service treatment records and service personnel records-to include from his National Guard service in Texas-have been associated with the claims file. If no additional records are available, the Appellant must be advised and informed that alternative forms of evidence can be developed to substantiate the claim, including but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court noted that the presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. It was further noted that the regulation terminology denotes only such conditions as are recorded in examination reports and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). The Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). If "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period ACDUTRA, the presumption of soundness only, will apply to a period of ACDUTRA. Id. The Appellant's service records reflect that he served in the Army National Guard of Indiana from March 1966 to October 1981 and in the Army National Guard of Texas from November 1981 to January 2006 with various periods of ACDUTRA and one period of active duty from August 2002 to July 2003. Service records indicate the following periods of ACDUTRA: Army National Guard of Indiana - March 1966 to October 1981: June 19, 1966 to July 3, 1966 April 15, 1967 to August 17, 1967 August 17, 1968 to August 31, 1968 August 2, 1969 to August 16, 1969 August 8, 1970 to August 22, 1970 July 21, 1971 to August 14, 1971 June 8, 1972 to June 24, 1972 June 14, 1973 to June 30, 1973 July 13, 1974 to July 27, 1974 July 10, 1975 to July 26, 1975 September 6, 1975 to September 7, 1975 June 10, 1976 to June 26, 1976 July 7, 1977 to July 23, 1977 July 26, 1978 to August 13, 1978 September 9, 1978 to September 10, 1978 July 5, 1979 to July 21, 1979 May 3, 1980 to May 17, 1980 June 13, 1981 to June 27, 1981 Army National Guard of Texas from November 1981 to January 2006, June 6, 1982 to June 20, 1982 August 6, 1983 to August 20, 1983 June 10, 1984 to June 24, 1984 July 31, 1985 to August 17, 1985 April 27, 1986 to May 11, 1986 June 24, 1987 to July 11, 1987 August 6, 1988 to August 20, 1988 July 15, 1989 to July 29, 1989 August 12, 1989 to August 13, 1989 September 9, 1989 to September 10, 1989. The Appellant apparently retired from National Guard "full-time" service as a technician in January 2006. Service treatment reports reflect that, in a June 1987 periodic examination, the Appellant had initially been assigned a "2" for his hearing in his PULHES profile, however, hearing loss was not specified as a diagnosis at that time. Thereafter, the Appellant was initially diagnosed with hearing loss in a September 1991 periodic examination. Possible hypertension versus "white coat effect" was initially diagnosed in a December 1991 service treatment report. The Appellant's blood pressure history throughout his service is listed as follows. A September 1982 Report of Medical Examination reflects that the Appellant's blood pressure was recorded at 140/96. In a June 1987 service treatment report, the Appellant reported a history of hypertension and the service treatment provider noted there was a single episode four years earlier. In a June 1987 periodic examination, the Appellant's blood pressure was recorded at 146/84. In a September 1991 periodic examination, the Appellant's blood pressure was recorded at 140/88. Possible hypertension versus "white coat effect" was initially diagnosed in a December 1991 service treatment report. A November 1996 Report of Medical Examination revealed the Appellant's blood pressure was recorded at 120/76 and again at 150/90, both while sitting. He reported a history of high blood pressure in a November 1996 Report of Medical History and specified that he had hypertension and was on calcium channel blockers for the past year and a half which controlled his blood pressure with no problems. In a January 2000 Annual Medical Certificate, the Appellant reported having high blood pressure currently. An October 2001 periodic examination revealed the Appellant's blood pressure was 148/86 and he was noted to have no heart problems other than hypertension, which had been listed in the summary of his defects and diagnoses. Audiometric findings throughout the Appellant's service are noted below. Audiometric testing in the September 1982 Report of Medical Examination revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 40 40 30 30 LEFT - 30 30 40 40 Audiometric testing in the June 1987 periodic examination revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 30 45 LEFT 10 10 10 55 50 The Appellant assigned a "2" for his hearing in his PULHES profile at that time. Audiometric testing in July 1987 revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 30 45 LEFT 10 10 10 55 50 Audiometric testing in August 1989 revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 30 45 LEFT 10 10 20 50 45 Audiometric testing in the September 1991 periodic examination revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 60 55 LEFT 10 10 20 50 45 Bilateral hearing loss was diagnosed at that time and the Appellant assigned a "2" for his hearing in his PULHES profile. Additional audiometric testing in September 1991 revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 05 35 60 LEFT 5 10 20 60 55 Audiometric testing in the November 1996 Report of Medical Examination revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 40 55 LEFT 10 5 35 60 55 Bilateral hearing loss was diagnosed at that time and the Appellant assigned a "2" for his hearing in his PULHES profile. Audiometric testing in the October 2001 periodic examination revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 60 65 LEFT 15 10 60 65 65 The Appellant was assigned a "2" for his hearing in his PULHES profile at that time. Private medical records from April 2003 to August 2009 reflect that the Appellant was treated for and diagnosed with hypertension in approximately April 2003. In considering the verified periods of ACDUTRA, the Appellant's MOSs throughout his Army National Guard service and active service, the PULHES profile of 2 for the Appellant's hearing during a period of ACDUTRA in June 1987, the initial diagnosis of hearing loss in September 1991, adequate VA examinations and etiology opinions are required to facilitate appellate review in order to determine whether the Appellant has a current hearing loss or tinnitus disability which was incurred or aggravated during a period of ACDUTRA or aggravated during his active service. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Accordingly, the case is REMANDED for the following action: 1. Attempt to locate complete service personnel and treatment records for the Appellant's National Guard service and active duty service in accordance with the following: Pursuant to Washington v. Nicholson, 19 Vet. App. 362 (2005) and 38 C.F.R. § 3.159(c)(2), submit inquiry to the following: (a). 5th Battalion, 112th Armor in Huntsville, Texas (b). U.S. Army Human Resources Command, The Retired Reserve, 1 Reserve Way, St. Louis, Missouri 63132-5200 Search for an obtain any PERIODIC PHYSICAL AND/OR SCHOOL EXAMINATIONS, to include the MEDICAL HISTORY QUESTIONNAIRES AND REPORTS OF CLINICAL EVALUATIONS. DOCUMENT ALL ATTEMPTS TO OBTAIN RECORDS AS WELL AS ANY NEGATIVE RESPONSES RECEIVED. Advise the Appellant of alternative forms of evidence that can be developed to substantiate the claims, including but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992); see Washington v. Nicholson, 19 Vet. App. 362 (2005) (remanding claim to the Board to address VA's duty to "exercise greater diligence in assisting the appellant with the development of evidence in support of his claim where medical records were lost while in VA custody."). 2. AFTER THE ABOVE HAS BEEN COMPLETED, the RO/AMC should schedule the Appellant for a VA examination by an appropriate examiner to determine the current nature and etiology of any current hearing loss or tinnitus. The claims folder and A COPY OF THIS REMAND are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The examination is to include a review of the Appellant's history and current complaints, A REVIEW OF THE AUDIOMETRIC FINDINGS DURING THE APPELLANT'S SERVICE AS LISTED IN THE REMAND PORTION ABOVE, a comprehensive evaluation of his hearing loss and tinnitus, and any tests deemed necessary. THE EXAMINER IS TO BE PROVIDED WITH ALL OF THE VERIFIED DATES OF ACDUTRA, AS NOTED IN THE REMAND ABOVE. The examiner is asked to offer an opinion addressing the following questions: (a). Does the Appellant currently have any hearing loss or tinnitus? If so, please specify the diagnosis (or diagnoses). (b). IF A CURRENT HEARING LOSS AND/OR TINNITUS DISABILITY IS FOUND, the examiner is asked to furnish an opinion as to whether a HEARING LOSS OR TINNITUS DISABILITY was INCURRED during any of the Appellant's periods of ACDUTRA either during or prior to June 24, 1987 to July 11, 1987? (c). IF A CURRENT HEARING LOSS AND/OR TINNITUS DISABILITY IS FOUND, the examiner is asked to furnish an opinion as to whether a HEARING LOSS OR TINNITUS DISABILITY was AGGRAVATED as a result of any of the Appellant's periods of ACDUTRA from August 6, 1988 to August 20, 1988 OR AFTER? (d). IF A CURRENT HEARING LOSS AND/OR TINNITUS DISABILITY IS FOUND, the examiner is asked to furnish an opinion as to whether a HEARING LOSS OR TINNITUS DISABILITY PREEXISTED his period of active service from August 2002 to July 2003? IF SO, did either condition become aggravated beyond the natural progress of the disease during this period of active service? PLEASE PROVIDE A FULL EXPLANATION OF THE REASONS FOR EACH OPINION FURNISHED. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiners have responded to the question posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. Readjudicate the hypertension, hearing loss and tinnitus claims on appeal. If the benefits sought on appeal remain denied, the Appellant and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Appellant need take no action unless otherwise notified. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs