Citation Nr: 1310281 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-16 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 3. Entitlement to a higher evaluation for bronchitis, currently rated as 10 percent disabling. 4. Entitlement to waiver of overpayment of VA compensation benefits in the amount of $360. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, 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 served on active duty from March 1948 to March 1952. This matter comes before the Board of Veterans' Appeals (Board) originally on appeal from an October 2008 rating decision of the VA Special Processing Unit (Tiger Team) at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying an increased rating for bronchitis, and petitions to reopen claims for service connection for hearing loss and tinnitus. A Board videoconference was held in January 2013 before the undersigned, and a transcript is of record. In December 2010, the Veteran filed a timely Notice of Disagreement (NOD) with a November 2010 decision of the RO's Committee on Waivers and Compromises (Committee) denying a waiver of recovery of indebtedness in the amount of $360. The RO must therefore issue a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This case is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is warranted on the issues on appeal, prior to reaching a final decision. The Veteran was denied service connection for hearing loss and tinnitus in February 2004 on the basis that there was no competent evidence the disorders were incurred in military service. Although the Veteran was notified of the February 2004 decision and his rights to appeal, he did not do so and "new and material" evidence must be received in order for VA to review the merits of the claim (i.e., whether the benefit should be granted). The Veteran has alleged there is medical evidence that has not been obtained, and the petition to reopen the claim will be remanded to attempt to obtain these records. The Veteran is advised that the purpose of this remand is to obtain medical records to determine (1) if they exist as he has alleged and (2) if they show new and material evidence that would reopen his previously denied claim. Although the Veteran competently reports excessive in-service noise exposure, the evidence must still show that his present claimed hearing difficulty and tinnitus are in fact the result of such noise exposure. This is the essential element of a "causal nexus" to service, and any documented treatment for hearing-related problems following service (particularly that dated from soon following service discharge) would help establish a causal nexus. Regarding the claim for increased evaluation for bronchitis, as the Veteran last underwent relevant VA Compensation and Pension examination in mid-2008, nearly five years ago, another VA examination is warranted to obtain more contemporaneous examination findings. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). With regard to the remaining matter of entitlement to waiver of recovery of an overpayment of $360 in VA compensation benefits, the Veteran has filed a timely Notice of Disagreement with the RO decision addressing that issue, and under the law, a Statement of the Case must now be issued to the Veteran offering him the opportunity to perfect an appeal to the Board. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 437 (1997). 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. The RO/AMC should contact the Michael E. DeBakey VA Medical Center in Houston, Texas and request all available treatment records pertaining to the Veteran (including those that are potentially on file from the 1950s, onward). Also contact the Federal Aviation Administration at the address the Veteran has provided (through his representative's January 2013 correspondence) where the Veteran was previously employed in the field of security, and request any available employment physical examinations on file. Then associate all records that are obtained with the claims file. 2. The RO/AMC should then schedule the Veteran for a VA respiratory examination pertaining to the severity of his bronchitis. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner must indicate all present symptoms and manifestations attributable to the Veteran's service-connected bronchitis, in accordance with the rating criteria specified at 38 C.F.R. § 4.97, Diagnostic Code 6600. 3. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). If new and material evidence is received, the RO/AMC must consider whether the Veteran should be scheduled for a VA audiology examination. See 38 U.S.C.A. § 5103A. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (holding that unless new and material evidence has been submitted, the duty to assist does not attach). 4. The RO/AMC should readjudicate the claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 5. The RO/AMC shall issue a Statement of the Case addressing the issue of entitlement to waiver of recovery of an overpayment of VA compensation benefits in the amount of $360. Only if the Veteran submits a timely Substantive Appeal addressing this issue should it be returned to the Board for appellate review. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. CONTINUED ON NEXT PAGE These claims 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 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).