Citation Nr: 1308613 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 11-12 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for flat feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION 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 Veteran had active military service from April 1953 to April 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claims file currently resides with the RO in Montgomery, Alabama. The Veteran was scheduled for a February 2013 videoconference hearing before a Veterans Law Judge. A review of the record reveals that the Veteran failed to appear for the scheduled hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA treatment records dated from January 2002 to December 2007, as well as a November 2009 VA audiology note are associated with the claims file. No records are otherwise associated with the Veteran's Virtual VA electronic claims file. In a March 2011 statement of the case (SOC), the RO, under the evidence section of the SOC, noted the following, Electronic and hard copy review of outpatient treatment records from VA Medical Center Birmingham for the period January 9, 2002, to March 16, 2011, was conducted on March 22, 2011, at 3:00 PM. Based on the RO's above report, there would appear to be VA treatment records available for review since November 2009. While the RO has reviewed those records, the Board has not yet had an opportunity. In light of this fact, the case, regrettably, is remanded to allow for the Veteran's VA records since November 2009 to be associated with either his physical claims file or with his Virtual VA electronic claims file. Additionally, in his application for VA benefits (VA Form 21-526), the Veteran reported that his hearing loss, tinnitus, and flat feet began while he was in the military. Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Waters v. Shinseki, 601 F.3d 1274, 1277, 1278 (Fed. Cir. 2010) (Claimant's statement must be something more than a "conclusory generalized statement that his service illness caused his present medical problems.") In the present case, the Veteran's symptoms associated with his hearing loss, tinnitus, and flat feet are susceptible to lay observation. As such, the RO should arrange for the Veteran to undergo a VA audiological examination, as well as arrange for the Veteran to be examined by either a podiatrist or orthopedist with regard to his feet. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (As for obtaining a VA medical examination or opinion, the requirement that the evidence of record indicate that the claimed disability or symptoms may be associated with the established event, is a low threshold). The examiners should determine the nature and etiology of the Veteran's hearing loss, tinnitus, and flat feet. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). (CONTINUED ON NEXT PAGE) 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. Associate the Veteran's VA treatment records, dated since November 2009, with either his physical claims file or with his Virtual VA electronic claims file. 2. After completion of the above, the Veteran should be scheduled for an audiological examination. The claims file must be made available to the examiner for review in connection with the examination. The examiner is requested to obtain a detailed history of the Veteran's bilateral hearing loss and tinnitus. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Following audiological testing, the examiner should offer his/her opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), that any diagnosed hearing loss and/or tinnitus had its clinical onset during service or is otherwise related to service. A complete rationale should be given for any opinion and conclusion expressed. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. The Veteran should also be examined by a podiatrist or orthopedist to determine the presence, nature, and likely etiology of his current flat feet. The claims file must be made available to the examiner for review in connection with the examination. The examiner is requested to obtain a detailed history of the Veteran's problems with his feet. Based on the examiner's review of the record and examination of the Veteran, the examiner should provide an opinion that states the diagnosis(es) for the Veteran's current foot disability(ies), and as to each diagnosed disability(ies), indicate whether it is more likely than not (i.e., probability greater than 50 percent), that any right or left foot disability (to include any flat foot disorder) had its clinical onset during service or is otherwise related to service. A complete rationale should be given for any opinion and conclusion expressed. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After undertaking any other development deemed appropriate, the Veteran's claims on appeal should be re-adjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) (which should include the provisions of 38 C.F.R. § 3.385 (2012)) and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ THOMAS J. DANNAHER 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).