Citation Nr: 1308946 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-02 674 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2006 rating decision in which the RO in White River Junction, Vermont denied service connection for bilateral hearing loss and tinnitus. In September 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In March 2007, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Manchester, New Hampshire, which certified the appeal to the Board. In October 2010, the Board remanded the claims then on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claims (as reflected in a September 2011 supplemental SOC (SSOC)) and returned the matters to the Board for further appellate consideration. In November 2011, the Board granted service connection for right ear hearing loss and tinnitus. The Veteran's claim for service connection for left ear hearing loss was again remanded to the RO, via the AMC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in a March 2012 SSOC) and returned that matter to the Board for further appellate consideration. In October 2012, the Board again remanded the claim remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in a January 2013 SSOC) and returned this matter to the Board for further appellate consideration. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the claims file reveals that the development directed in the October 2012 remand was not fully completed. In the October 2012 remand, the Board instructed the RO, among other things, to forward the Veteran's claims file to the physician who examined the Veteran in December 2010. The physician was to provide an addendum to his prior report, containing an opinion as to whether it was at least as likely as not (i.e., there was a 50 percent or greater probability) that the Veteran's left ear hearing loss was the result of injury or disease incurred or aggravated in service, to specifically include in-service exposure to noise. If the December 2010 physician was unavailable, or another examination was deemed warranted, the RO was to arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the Board's request. A review of the record reveals that the AMC, in December 2012, requested an addendum report, as directed in the remand. However, the claims file was sent to an audiologist who examined the Veteran in November 2010 (and had already provided an addendum in February 2012), rather than to the physician who examined the Veteran in December 2010. Significantly, there is nothing in the record to document that the December 2010 physician was unavailable to prepare an addendum, as requested in the remand. Hence, the Veteran's claims file should be forwarded to the VA physician who examined the Veteran in December 2010 for an addendum opinion to provide an opinion and rationale regarding the Veteran's left ear hearing loss. Only if the December 2010 physician is unavailable, or a new examination is deemed necessary, should a new examination should be scheduled. If another examination is scheduled, the Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection for left ear hearing loss (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further medical opinion in this matter, to ensure that all due process requirements are met, and the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. The record reflects that the Veteran has been receiving treatment at the VA Medical Center (VAMC) in White River, Vermont. The paper and electronic (Virtual VA) claims files contain VA medical records from the White River VAMC dated through January 8, 2013; however, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the White River VAMC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since January 8, 2013. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the White River VAMC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since January 8, 2013. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should forward the entire record on appeal, to include a complete copy of this REMAND, to the December 2010 VA physician (Dr. R.J.) for an addendum opinion. With respect to the Veteran's left ear hearing loss disability, the physician should clearly opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service, to specifically include in-service noise exposure associated with service. In rendering the requested opinion, the physician should specifically consider and discuss the opinions of record, to include the December 2010 opinion pertaining to the right ear and the February 2012 and January 2013 opinions provided by a VA audiologist, as well as the Veteran's lay assertions. If the December 2010 VA examiner is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, that fact should be documented in the claims file, and the RO should arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).