Citation Nr: 1317569 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-29 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for chronic tinnitus. REPRESENTATION Appellant represented by: M. J. Kelley, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The appellant reportedly had service with the Massachusetts Army National Guard from approximately 1948 to 1990, a portion of which apparently represented active duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Good or sufficient cause having been shown, the appellant's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). This appeal is being REMANDED to the RO for additional development. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the appellant's claimed hearing loss and tinnitus. In that regard, available records would indicate that the appellant had many years of service with the Massachusetts Army National Guard, eventually retiring as a Command Sergeant Major. He has reported or testified that during his many years of service, he was exposed on numerous occasions to hazardous noise levels in his capacity as an artilleryman, an antiaircraft gun mechanic, and section chief for missile units. He reports that his in-service noise exposure was not only from missiles, but also from generators and inverters. Available records document the presence of hearing loss and/or tinnitus in March 1972, May 1977, February 1998, and, most recently, April 2005. Based upon a review of the entire evidence of record the appellant does, in fact, currently suffer from "hearing loss disability" as defined by VA regulation. What remains to be determined is whether any hearing loss and/or tinnitus is related to active military service. In that regard, the appellant has yet to be afforded a VA audiometric examination for the purpose of determining the exact nature and etiology of his hearing loss and tinnitus. During the course of a hearing before the undersigned Veterans Law Judge in March 2013, the appellant expressed a willingness to report for such an examination. Under the circumstances, the Board finds that an audiometric examination would be appropriate prior to a final adjudication of the appellant's claims for service connection for bilateral hearing loss and tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, notwithstanding various efforts by the RO, attempts to verify the appellant's period or periods of active service and/or active duty or inactive duty for training have proven unsuccessful. Nonetheless, the Board finds that an additional attempt should be made to verify the appellant's service utilizing, to the extent possible, available pay records. Accordingly, in light of the aforementioned, the case is REMANDED to the RO for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to June 2008, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The appellant should be requested to sign any necessary authorization for release of any private medical records to the VA that have not been previously submitted. All attempts to procure such records should be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The RO should then contact the Defense Finance and Accounting Service in Cleveland, Ohio, as well as the National Personnel Records Center, and separately ask each to provide a copy of the appellant's Master Military Pay Account which reflects all pay and allowances paid, indicating the exact dates of all active duty for training and inactive duty training, as well as any active duty service, including during his membership with the Massachusetts Army National Guard. These records should be obtained for all periods of the appellant's military service. To the extent necessary, all other appropriate sources should be contacted for this verification, including appropriate sources at the Massachusetts Army National Guard. Once obtained, all such information should be included in the appellant's claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. The appellant should then be afforded a VA audiometric examination in order to more accurately determine the exact nature and etiology of his current hearing loss and tinnitus. The appellant is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claims. The appellant is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. § 3.158, 3.655 (2012). In the event that the appellant does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the audiometric examination, the examiner must specifically address whether any diagnosed hearing loss and/or tinnitus, at least as likely as not had their origin during, or are in some way the result of, the appellant's active military service, to include active and/or inactive duty for training, and any other documented active service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the appellant's claims folder. The claims folder and Virtual VA must be made available to and reviewed by the examiner prior to completion of the examination. 4. The RO should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. The RO should then readjudicate the appellant's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Should any benefit sought on appeal remain denied, the Appellant and his attorney must be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claims for benefits since June 2009. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ DEREK R. BROWN 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).