Citation Nr: 1319199 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-01 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and B.G. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge by video conference from the Waco RO in January 2012. A transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 June 2012, the Board reopened the Veteran's claim for entitlement to service connection for bilateral hearing loss and remanded the issues of entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus for further development. In part, the Board instructed the AMC to provide the Veteran with a VA examination to determine the etiology of his bilateral hearing loss and tinnitus. In compliance with the Board's remand directives, the Veteran underwent a VA audiological examination in April 2013. Initially, the Board observes that the Veteran's service treatment records are unavailable. In April 2001, the National Personnel Records Center (NPRC) reported that the Veteran's service records were destroyed in a 1973 fire at their St. Louis, Missouri facility. In cases where service records are unavailable, there is a heightened obligation to assist the claimant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). After reviewing the Veteran's claims file, the April 2013 VA examiner concluded that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not caused by or a result of his active duty service. The examiner acknowledged that the Veteran's service treatment records were unavailable and conceded the Veteran's reported in-service noise exposure, but concluded that, in the absence of any objective evidence from the Veteran's service period as well as the post-service evidence showing noise exposure during the Veteran's employment, that it was more likely that the Veteran's hearing loss and tinnitus were related to his post-service noise exposure rather than the brief period of time that he was exposed to noise during service. The VA examiner did not address or consider the Veteran's lay statements or the buddy statement and testimony from B.G. who served with the Veteran, that the Veteran had symptoms of hearing loss and tinnitus during service. The Veteran and B.G. are competent to describe symptoms capable of lay observation, such as loss of hearing or ringing in the ears. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). This lay evidence suggests that the Veteran had both noise exposure and experienced symptoms of hearing loss and tinnitus during service. As the April 2013 VA examiner's opinion was based, in part, on the rationale that there was no evidence of in-service hearing loss or tinnitus, and because the competent evidence of record suggests that there were symptoms of hearing loss and tinnitus during service, the Board finds that opinion provided by the April 2013 VA examiner is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Veteran must be provided with a new VA examination which addresses all of the pertinent and competent evidence in the claims file. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with a new VA audiological examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The Veteran's claims file and a copy of this Remand must be provided to the VA examiner for review prior to the examination. All necessary studies and tests must be accomplished. Thereafter, based upon a complete review of the Veteran's claims file including the Veteran's competent lay statements and the competent statements provided by B.G. that the Veteran had noise exposure during service as well as symptoms of hearing loss and tinnitus during service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss and tinnitus are related to his military service, to include his in-service noise exposure. The examiner must provide a complete rationale and explanation for the basis of the opinion. 2. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655(a) (2012). 3. After completing the above and conducting any other development that may be indicated, the RO must readjudicate the Veteran's claims. If either of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).