Citation Nr: 1320886 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-41 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for right ear hearing loss. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was formerly represented by AMVETS, which withdrew its representation of the Veteran in April 2013. The Veteran is now unrepresented. In his October 2009 substantive appeal, the appellant requested a hearing at a local VA office before a Member of the Board. He was scheduled for a hearing for June 2013, and he was sent a notice letter in April 2013. The appellant did not report for this hearing. He has neither requested a new hearing nor shown good cause for his failure to report to the prior hearing. Therefore, his hearing request is deemed withdrawn. 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 Veteran has claimed entitlement to service connection for right ear hearing loss, which he essentially contends developed as a result of an in-service injury that resulted in perforation of his right eardrum. The record reflects that the Veteran filled out two separate copies of a VA Form 21-4142, "Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)." One of these forms was for a Dr. George W. Shahade for treatment received in 2001 and 2004 and another was for a Dr. Timothy Nash for treatment received in 1997. Both forms list the same address and phone number. VA sent records requests, along with copies of the authorization forms, to these doctors in April 2008. Neither doctor responded. VA sent a follow-up request to Dr. Shahade, but not to Dr. Nash, in June 2008. Dr. Shahade sent in the requested records, but no records have been received from Dr. Nash. The duty to assist requires that VA make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. 38 C.F.R. § 3.159(c)(2). In the case at hand, as noted above, Dr. Shahade and Dr. Nash are listed as having the same address and phone number. Because it is unclear whether there is a professional relationship between these two doctors, the Board will not assume that Dr. Shahade's response to the records request constitutes a response from Dr. Nash. Thus, there is no indication that a follow-up request to Dr. Nash would be futile. The Board therefore finds it necessary to remand this claim for another attempt to obtain records from Dr. Nash. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to sign and return release forms authorizing VA to obtain any relevant outstanding private medical records. Specifically, the Veteran should be asked to fill out an authorization form for Dr. Timothy Nash. The Veteran should also be notified that he may submit any such records himself. The notification requirements of 38 C.F.R. § 3.159(c)(1) should be followed with respect to any private medical evidence identified by the Veteran. If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. All efforts to obtain these records should be recorded in the claims folder. 2. The Veteran should be afforded an audiological evaluation by an examiner with sufficient expertise to determine the etiology of the claimed right ear hearing loss disability. The claims folder must be made available to and reviewed by the examiner, and any indicated audiological studies should be performed. In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's hearing loss disability on his occupational functioning and daily activities. An opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that any current right ear hearing loss disability is a consequence of the perforation of the right ear the Veteran reportedly sustained while serving in Vietnam or is otherwise related to his period of military service. Reasons and bases for all conclusions should be given. 3. After the development requested above has been completed, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).