Citation Nr: 1314111 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 07-17 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1966 to August 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. This matter was previously before the Board in February 2011, at which time it was remanded for further development. The Board notes that the issue of service connection for posttraumatic stress disorder (PTSD) was also before the Board at that time. After the development requested as part of the February 2011 remand, the Appeals Management Center (AMC), acting on behalf of the RO, granted service connection for PTSD in an April 2012 rating determination. As this was the full benefit sought on appeal, the Board will no longer address this issue. Unfortunately, as will be discussed below, the Board must once again remand the issues of service connection for hearing loss and tinnitus for additional development. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND As to the issues of service connection for hearing loss and tinnitus, the Board notes that in her March 2012 VA examination report and August 2012 VA addendum report, the examiner made reference to a June 2011 VA audiological consult, both by way of evidence reviewed in conjunction with the claim and as rationale for her opinions that tinnitus and hearing loss were not as least as likely as not related to the Veteran's period of service. A review of the claims folder and Virtual VA does not reveal the June 2011 treatment records to which the examiner refers to in her report. VA is deemed to have constructive possession of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612-13 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). The Board further observes that the last VA treatment records associated with claims folder, to include by way of Virtual VA, date back to May 2005. As to the March 2012 VA examiner's opinion, the Board notes that the examiner has indicated that there were no findings related to hearing loss subsequent to service until June 2011. The Board observes that private treatment records associated with the claims folder make reference to both hearing loss and tinnitus in March 2006. Thus, after any additional treatment records received from VA in conjunction with this remand have been associated with the record, the claims folder should be returned to the examiner for review to determine if any change is warranted in the prior opinion. Moreover, the examiner should reference the March 2006 private treatment record when rendering her opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all records of the Veteran's treatment from the Loma Linda VA Medical Center since May 2005, to include the June 2011 VA audiological consult referenced in the VA examination report. 2. After performing the actions required in paragraph (1) above, return the claims folder to the March 2012 VA examiner, if available, and request that the entire record be reviewed to determine whether any change in the previous rendered opinions is warranted. The examiner is also to comment on the March 2006 private treatment record when rendering the opinion. If the examiner is no longer available refer the claims folder to another examiner who should be requested to render opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss or tinnitus is related to the Veteran's period of service. Detailed rationale should be provided to support the requested opinions. 3. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claims for service connection for hearing loss and tinnitus. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ K. J. ALIBRANDO 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).