Citation Nr: 1319468 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-47 050 ) 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. 3. Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from November 1961 to November 1963 and from December 1963 to June 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO adjudicated the Veteran's back disability claim on a finality basis in light of the unappealed October 1974 rating decision that denied service connection for this condition, as the Veteran's representative points out in June 2013 written argument, since that time the Veteran has submitted pertinent service personnel records relating to this claim. As such, the Board has recharacterized the issue to reflect that it will be considered de novo. 38 C.F.R. § 3.156(c) (2012). 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 The January 2008 rating decision, as well as the statement of the case (SOC) and supplemental statement of the case (SSOC), note that the Veteran's service treatment records (STRs) were unavailable for review because the Veteran's original file containing these records and earlier treatment records was unavailable for a period of time. The Veteran's original file containing these records was subsequently found and combined with the Veteran's temporary file. The Veteran was afforded a VA audiological examination in December 2008, the report of which reflects that the examiner could not render an opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. The examiner stated that the Veteran's claims file was available for review. The Board is unsure if the examiner had access to the Veteran's STRs and earlier treatment records. Therefore, another opinion regarding the etiology of these conditions should be obtained. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's original claims file notes that service connection for herniated nucleus pulposus of L4-L5 was denied in October 1974 on the premise that the Veteran's current low back disability began after service in August 1973, and the one incident of low back pain in service resolved with residual disability. In light of the newly received service personnel records, the Veteran's contentions and the state of the record, the Board finds that this issue must be remanded for a VA examination, which is necessary to adjudicate this claim. On remand, the RO must ensure that all pertinent, outstanding records are physically or electronically associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service back, hearing and/or tinnitus symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Ask the Veteran whether he has received any additional evaluation or treatment for his back problems, bilateral hearing loss and tinnitus. If he has, and the records are not already in the file, then obtain them with his cooperation. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c) and (e). 3. Return the claims file to the December 2008 VA audiological examiner. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion) regarding the etiology of the Veteran's bilateral hearing loss and tinnitus, then obtain this additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the c-file. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury during active service. See Hensley v. Brown, Vet. App. 155, 159 (1993). The examiner should acknowledge that the Veteran's reported noise exposure during service and his report that he noticed onset of the claimed hearing loss and tinnitus in service is presumed in light of his military occupational specialty as a gunner's mate, which has a high probability of in-service noise exposure. 4. The Veteran should be afforded an appropriate VA examination to determine the nature, extent, onset and etiology of any back disability found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that the Veteran's back disability had its onset during service. In doing so, the examiner must discuss the history of the Veteran's back disability, to include any in-service outpatient or inpatient care for this condition and any lay and medical evidence relating to the onset and etiology of the disability. The rationale for all opinions expressed should be provided in a legible report. 5. Then readjudicate the claims. If any claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond. 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). _________________________________________________ STEVEN D. REISS 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).