Citation Nr: 1318424 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-48 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to September 22, 2012, and in excess of 10 percent from that date. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a February 2010 rating decision, the RO granted entitlement to service connection for bilateral hearing loss with a non-compensable evaluation. In a February 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. In an October 2012 rating decision, the RO increased the evaluation of bilateral hearing loss to 10 percent disabling, effective September 22, 2012. Because the maximum benefit was not granted, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2013 the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at this hearing has been associated with the record. 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. REMAND In September 2012, the Veteran was last afforded a VA audiologic examination. At his March 2013 Board hearing he testified that he was aware that he had been awarded the highest schedular evaluation for his service-connected tinnitus, but felt that it had "gotten worse" and resulted in "more of a hearing loss." When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's complaints of additional hearing loss indicate possible worsening of the service-connected bilateral hearing loss disability, the Veteran should be afforded a new VA examination to address the severity of this condition. Also, the Board notes that a review of a February 2010 VA audiologic examination references VA medical records related to audiologic treatment dated in October 2009 and December 2009; however, no such records have been associated with the claims file. VA is under a duty to make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Accordingly, this matter must be remanded to attempt to obtain these outstanding records. Similarly, the Board notes that a review of the claims file indicates that the Veteran receives treatment for hypertension at the Harry S. Truman Memorial Veterans' Hospital in Columbia, Missouri and that he receives all of his medical care at this facility. No records from this facility have been associated with the claims file. Upon remand, these records must be obtained and associated with the claims file. Id. Lastly, the Veteran should be afforded a VA examination to address his claim for service connection of ischemic heart disease, to include as due to exposure to herbicides. The Veteran has competently indicated that he served near the Korean demilitarized zone (DMZ) and a review of his personnel records documents that he served as an Ambulance Orderly and Ambulance Driver with Company C, 7th Medical Battalion, 7th Infantry Division from January 1968 to March 1969 in Korea. These factors, coupled with his lay observations of a fluttering feeling in his chest and a racing heartbeat, suggest that he may have ischemic heart disease, either directly attributable to service or presumptively so based upon presumptive exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also 38 C.F.R. § 3.309(e), as amended, 75 Fed. Reg. 53,203 (August 31, 2010). Accordingly, a VA examination is necessary to decide this claim. 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file, particularly all records from the Harry S. Truman Memorial Veterans' Hospital in Columbia, Missouri, and associate them therewith. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an audiological examination to determine the severity of his service-connected bilateral hearing loss. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. 3. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an examination to ascertain whether he has ischemic heart disease, or any other heart disease and the etiology thereof. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. For any diagnosed disorder of the heart, other than ischemic heart disease (if diagnosed), the examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that the condition(s), is/are attributable to service, to include as due to presumed exposure to herbicides. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ BETHANY L. BUCK 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).