Citation Nr: 1307218 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-42 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from May 1956 to July 1960. He had subsequent service in the Alabama Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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 The Board finds it necessary to remand the case to the agency of original jurisdiction (AOJ) for additional development and consideration. First, VA has a duty to obtain relevant records in the custody of a Federal department or agency, including service treatment records (STRs). See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). It appears that the Veteran's complete records from his service in the Alabama Air National Guard have been obtained as records dating from 1974 to 1993 are contained in the claims file. However, no STRs have been obtained from the Veteran's period of active service dating from May 1956 to July 1960. In a January 2013 brief, the Veteran's representative believes that the STRs from the earlier period of service may still be located at the National Personnel Records Center (NPRC) given the lengthy break between that period of service and the onset of service in the Air National Guard. The representative notes that the RO requested service records from VA's Records Management Center, but not from NPRC. To comply with VA's duty to assist, the Board finds it necessary to remand the claim to allow for the AOJ to make further requests for the Veteran's STRs. Next, VA will also make reasonable efforts to obtain relevant records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. Additionally, a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from private medical care providers. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In June 2009, the Veteran identified Dr. Kurtts at the Elberta Clinic in Elberta, Alabama as a private treatment provider. A June 2009 letter from Dr. Kurtts regarding hearing loss is of record, but there is no indication that a record request was made for any available treatment records. Because records from Dr. Kurtts have not yet been requested, the claim must also be remanded to allow for the AOJ to make reasonable efforts to obtain those medical records. On multiple occasions, the Veteran has indicated that he had tubes put in his ears for drainage sometime between 1973 and 1976. During an August 1975 periodic examination for the Air National Guard, the Veteran reported that a Dr. Johnson at Flowers Hospital installed tubes in both ears for drainage in 1973. Although the records may have been destroyed due to their age, a record request should be made on remand to Flowers Hospital, which is located in Dothan, Alabama. A September 1981 periodic examination refers to a Dr. Taylor in Foley, Alabama, who inserted tubes into the Veteran's ears. On remand, the Veteran should be sent a letter requesting him to better identify his past treatment providers, such as Dr. Taylor, who may possess relevant medical records. Lastly, another VA medical opinion should be provided that addresses the onset and etiology of the Veteran's hearing loss while taking into account any additional records that are obtained. Accordingly, this case is REMANDED for the following actions: 1. Contact the NPRC, or other appropriate government agency, and request the Veteran's STRs from his period of active service dating from May 1956 to July 1960. 2. Send a letter to the Veteran asking him to identify any medical facility or treatment provider from which he has received treatment for ear or hearing loss problems. Ask him to provide more complete information so a record request can be made as to the treatment providers who inserted tubes in his ears in the 1970s, including information regarding a Dr. Taylor in Foley, Alabama. Ask him to submit any relevant records that he possesses. 3. Request treatment records from Dr. Kurtts in Elberta, Alabama, and any other treatment records identified by the Veteran. Obtain a release from the Veteran as necessary. 4. Notify the Veteran of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 5. Thereafter, refer the Veteran's claims file to the examiner who conducted the June 2009 VA examination or, if she is unavailable, to another suitably qualified VA medical professional for a clarifying opinion as to the nature and etiology of the Veteran's hearing loss. The examiner must be given full access to the Veteran's complete VA claims file and Virtual file for review, including any newly obtained STRs and private treatment records. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and Virtual VA file were reviewed. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Thereafter, the examiner must state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's hearing loss has its clinical onset during, or is otherwise related to, his active military service. In rendering the requested opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After the requested report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned for corrective action. 7. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).