Citation Nr: 1319245 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 13-03 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to October 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Please note 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 Veteran if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran submitted a Form 21-4142 dated April 2012 indicating that treatment records should be obtained from his private physician. There is no documentation of any attempts to obtain these records in the claims file. Thus, the RO/AMC should obtain an additional privacy release and request records from the Veteran's private audiologist. Additionally, the rating decisions in March 2010 and June 2010 indicate that the Veteran's VA treatment records were reviewed electronically. Unfortunately, only one record, dated December 2006, was associated with the claims file. There are currently no records attached to the Veteran's Virtual VA claims file. The RO/AMC should obtain and associate with the claims file the Veteran's VA treatment records on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board notes that the Veteran has submitted a private audiologist's opinion dated September 2010 with an additional letter dated November 2010 indicating that it is a hypocrisy for the February 2010 VA examination to attribute the Veteran's hearing loss to post-service noise exposure and aging rather than his eight months of active service. However, there is no rationale for this opinion. Thus, after all of the ordered development is completed and any additional records obtained are associated with the claims file, the RO/AMC should obtain a medical opinion to determine the etiology of his hearing loss and tinnitus, with consideration of all of the evidence of record. McLendon v. Nicholson, 20 Vet. App. 79 (2006). (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should request the Veteran to provide identifying information concerning any health care facilities where he received treatment or underwent evaluation for any of the disabilities at issue to include from his private audiologist, B.W. It should then undertake any additional indicated development to obtain any pertinent, outstanding evidence, to include contacting any identified health care facilities. The RO or the AMC should continue its efforts to obtain any pertinent, outstanding medical records unless additional efforts would be futile. 2. Obtain and associate with the claims file any pertinent records adequately identified by the veteran, including any ongoing medical records from the Kansas City VAMC. 3. Obtain a medical opinion concerning the etiology of the Veteran's hearing loss and tinnitus. The Veteran's claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. Following review of the claims file to include the private opinion dated September 2010 and November 2010, the examiner should provide an opinion as to whether the Veteran's current bilateral hearing loss and tinnitus is more likely, less likely, or at least as likely as not (50 percent probability) related to his period of active duty from March 1946 to October 1946. If the examiner determines that in-person examination of the Veteran is necessary, then such VA examination should be scheduled. The examiner should provide a full rationale of any opinion provided. 4. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran 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). These claims 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). _________________________________________________ THOMAS J. DANNAHER 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).