Citation Nr: 1314387 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 08-35 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement of service connection for right ear hearing loss. ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1976 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for right ear hearing loss. The Veteran timely appealed that decision. This case was initially before the Board in February 2010 when it was remanded for further development. It was returned to the Board in September 2011, when the Board denied service connection for right ear hearing loss. The Veteran timely appealed that denial to the United States Court of Appeals for Veterans Claims (Court). After supplemental briefing, the Court issued a December 2012 memorandum decision which vacated the September 2011 Board decision and remanded the claim back to the Board for further development in compliance with the deficiencies noted in the memorandum decision. A Judgment order was issued in January 2013. The case has been returned to the Board at this time in compliance with the December 2012 memorandum decision and the subsequent January 2013 Judgment order. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. The Board notes that the Veteran's increased evaluation claim for his lumbar spine was previously remanded in the September 2011 Board decision. That claim has not yet been recertified to the Board, and the Board reminds the RO/AMC that that claim is still pending and the September 2011 remand order is still active as to that issue. The issue of service connection for a dental condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND In the December 2012 memorandum decision, the Court noted that the Board did not adequately explain whether the Veteran had acoustic trauma in service. The Veteran has stated that he was a machine gunner during training in 1976, during which time he trained with an M-60 machine gun and that he used an M-16 rifle during his period of time in the National Guard. The Board, therefore, concedes acoustical trauma during service at this time. See 38 U.S.C.A. § 1154(a) (West 2002). The Board additionally notes that there has not been a VA audiologic examination performed in this case. Therefore, the Board finds that a VA examination is necessary at this time. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Board additionally notes that the Veteran appears to have applied for Social Security Administration (SSA) benefits, and was not awarded benefits. However, it is unclear whether those records would be potentially relevant to the Veteran's claim on appeal at this time, and thus, on remand, attempts to obtain those records should be made. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Also, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Veteran should be provided with updated VCAA notice in this case during the remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice with respect to his claim of service connection for right ear hearing loss. Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain any relevant VA treatment records from the Shreveport or Monroe VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since April 2011 and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his right ear hearing loss, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records pertinent to the Veteran's claim for disability benefits as well as the medical records relied upon in considering that claim. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event of a negative search, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 5. Schedule the Veteran for a VA audiological examination in order to determine the nature and etiology of his right ear hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the VA audiologist should opine whether the Veteran's right ear hearing loss is more likely, less likely, or at least as likely as not (50 percent or greater probability) the result of military service, to include any noise exposure therein. The examiner should additionally address the noted hearing loss in the April 1985 National Guard enlistment examination, as well as the noted ear, nose and throat trouble complained of on separation from service in August 1976. The examiner should additionally address any of the Veteran's lay statement of record regarding onset, etiology or continuity of symptomatology. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for right ear hearing loss. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ J. A. MARKEY 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).