Citation Nr: 1314944 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-23 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ear disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to July 1978. She also had a period of service with the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2010 and June 2012. In June 2012, the Board determined that new and material evidence had been submitted to reopen the claim for service connection for a bilateral ear disability. The claim under a merits analysis was remanded to the RO for further development and adjudication. The matter has been returned to the Board. The appeal is again 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 Veteran seeks service connection for a bilateral ear disability and tinnitus. The Veteran asserts these disabilities are the result of an injury to her ears in May 1982 when her ears failed to pressurize while descending in a commercial plane when reporting to active duty for training. Hemotympanum of both eardrums was diagnosed. As discussed in the Board's June 2012 remand, further development is necessary prior to adjudication of the Veteran's claims. The Board remanded the appeal for an examination to determine the nature and etiology of the Veteran's claimed disabilities. An examination was scheduled for July 2012. However, the Veteran failed to show for the examination. After a review of the record, it is unclear whether the Veteran received notice of the scheduled examination. The Appeals Management Center sent a letter dated June 2012 to the Veteran explaining that she would receive notification from the VA medical center (VAMC) of the date, time, and place of the examination. There is no indication the Veteran was notified of the scheduled examination, as the examination notification letter is absent from the record. Further, there is no indication the VAMC, or the RO, made any attempts to contact the Veteran regarding the missed examination. Additionally, there appears to be a discrepancy with regard to the Veteran's current address. Since the Board's June 2012 remand, two differing addresses have been used for the Veteran interchangeably. Notably, the June 2012 remand was mailed to one address, three days later the June 2012 duty to assist letter was mailed to a different address, and then a February 2013 supplemental statement of the case (SSOC) was mailed to the same address as the Board's remand. There is no change of address in the file. However, in December 2011 and February 2012, mail was returned undeliverable after being sent to the address used for the Board remand and SSOC. Once the Veteran's current address has been ascertained, the Veteran should be scheduled for another VA examination. She is advised that it is her obligation to report to any scheduled examination. "The duty to assist is not always a one way street. If a Veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If she fails to report, her claims will be rated based on the evidence of record. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the Veteran (or her representative) to ascertain her current address and update her records accordingly. 2. Following the above, the RO should schedule the Veteran for an appropriate VA examination to determine the etiology of the claimed bilateral ear disability and tinnitus. Notice of the scheduled examination should be sent to the Veteran's current address as ascertained by the RO. It is imperative that the claims file be made available to the examiner for review in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed tinnitus and/or bilateral ear disability, including hearing loss, is causally related to the May 1982 flying incident. The examiner should set forth reasons for the opinion. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The RO should then readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the RO must furnish the Veteran with an appropriate supplemental statement of the case and afford her and her representative the opportunity to respond. The case should then 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). 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). _________________________________________________ ALAN S. PEEVY 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).