Citation Nr: 1311090 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-07 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1949 to October 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2012 and October 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. 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 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 Regrettably, the Board determines that a remand is again required in this case for further development of the record and to afford the Veteran all necessary due process. The Board apologizes to the Veteran for the continued delay in resolving his claim. Of record are VA treatment records dated through April 2012. The Board observes that among these records is an April 2012 audiological evaluation. This treatment note indicates that the Veteran is unable to walk straight and falls frequently and that he has a sensation of falling when he leans over and disequilibrium when walking. The Veteran was referred to Physical Therapy for evaluation, but there are no treatment records dated after April 2012 in the claims file or in the Virtual VA e-folder. Therefore, there are presumably outstanding, relevant records that need to be obtained before further adjudication of the claim. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Moreover, there is no indication that these records were contemplated by the AOJ when the claim was readjudicated in either the August 2012 or February 2013 supplemental statements of the case or by the VA examiner in January 2013. The Board notes that the examiner identifies only balance problems when standing quickly without reference to the other symptoms the Veteran describes in the April 2012 treatment note. The Veteran is competent to describe the symptoms he experiences. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the Board observes that the January 2013 VA examiner stated that the Veteran's balance problems when standing were likely related to heart or carotid arteries, but he did not provide a rationale for that opinion. Therefore, the opinion is inadequate and does not comply with the Board's October 2012 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Board notes that the May 2012 VA examiner related the Veteran's vertigo to ear disease, and the October 2012 VA examiner did not acknowledge the discrepancy in the opinions. For these reasons, the Board determines that a remand of the appeal is again necessary. 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 with the claims file all VA treatment records for the Veteran from the Marion VAMC and any associated outpatient clinics and dated from April 2012 forward. All requests and responses, positive and negative, must be documented in the claims file. All efforts to obtain these records must continue until it is determined that the records do not exist or that further attempts to obtain them would be futile. If the records cannot be located, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. Request clarification of the opinion from the January 2013 VA examiner. The claims file must be made available to the examiner for review, and the examination report must reflect that such review occurred. The examiner should then respond to the following questions: a. Is it at least as likely as not that the Veteran has an inner ear disorder that is a result of military service, to include recurrent ear infections? b. Is it at least as likely as not that the Veteran's balance problems, e.g., inability to walk straight, feeling of falling over, disequilibrium, etc., are a result of his service-connected hearing loss or other service-connected disability? In forming these opinions, the examiner must consider all of the Veteran's symptomatology as reported at not only the October 2012 VA examination but also within VA treatment records, particularly the April 2012 VA treatment note, and in his personal statements of record. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. Additionally, the examiner must consider the May 2012 VA examiner's opinion that the Veteran has vertigo that is a result of ear disease. The examiner should discuss any disagreement between the opinion proffered and that provided by the May 2012 VA examiner. If the January 2013 VA examiner is unavailable, the opinions should be requested from another equally qualified ENT specialist. 3. Thereafter, the AOJ should review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to, and in compliance with, the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided with a supplemental statement of the case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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 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). _________________________________________________ L. M. BARNARD Acting 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).