Citation Nr: 1321653 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 08-10 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: David L. Huffman, Attorney WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a May 2007 rating decision, the RO denied the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus and he appealed. In June 2009, he and his wife testified before a Decision Review Officer (DRO) at the RO. In October 2009, they testified at Board hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In February 2010, the Board remanded the claims for additional development. In a February 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for ischemic heart disease and he perfected an appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 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 February 2010, the Board remanded the claims of service connection for a bilateral hearing loss disability and tinnitus for additional development. The Board, in part, directed the agency of original jurisdiction (AOJ) to obtain all VA treatment records since September 2009 and associate them with the claims file. In May 2010, the AOJ obtained VA outpatient records from the Clarksburg VA Medical Center (VAMC) dated from September 2009 to April 2010. In November 2010, the AOJ obtained VA outpatient records dated from January 2008 to October 2010. A supplemental statement of the case (SSOC) was issued in December 2010. The appeal was not recertified to the Board until May 2013. It appears that the delay occurred so that the RO could develop and adjudicate the Veteran's claim of service connection for ischemic heart disease. The same day the case was certified, the RO associated VA outpatient treatment records dated from November 2011 to May 2013 with the Veteran's Virtual VA electronic file. An October 2012 VA Hearing Aid Adjustment note indicates that the Veteran's last audiogram was in August 2011. Unfortunately, the August 2011 audiogram and VA outpatient treatment records dated from October 2010 to November 2011 are not of record. As there is notice of the existence of additional VA records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board also finds that another VA examination and medical opinion is warranted. A VA examination was conducted in April 2007; however, it is unclear whether the examiner considered the Veteran's lay statements. Since the examination, the Veteran and his wife have testified at two hearings and have provided additional information concerning his claims. During the December 2009 DRO hearing, the Veteran reported that he experienced ringing in his ears after firing weapons during service (Hearing Transcript (Tr.), pg. 12). He said that he was not asked about the ringing during his discharge examination and did not report it because he just wanted to get home. Id. During the October 2010 Board hearing, he reported that he had hearing problems since he returned from service (Hearing Tr., pg. 3). He said he first noticed hearing loss after firing big guns and that he had had tinnitus as long as he could remember (Hearing Tr., pgs. 5-6). The Board notes that the Veteran received the Combat Infantryman's Badge. His DD 214 reflects that his primary specialty was Light Weapons Infantryman. His military personnel records reflect that his duty assignments included rifleman and grenadier. As a combat veteran, the appellant is afforded the presumptions of 38 U.S.C.A. § 1154(b). In this case, as the Veteran's reports of experiencing tinnitus and hearing loss after firing weapons are consistent with the circumstances, conditions and hardships of his service, they must be accepted. The remaining question is whether his current hearing loss and tinnitus are related to the acoustic trauma he sustained in service. 38 C.F.R. § 3.303(d) (2012). Regarding the Veteran's claim of service connection for ischemic heart disease, the Veteran submitted a timely substantive appeal (VA Form 9) requesting a Board hearing at the RO. Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 20.703, 20.704 (2012). In light of the above, and because the RO schedules Travel Board hearings, a remand of this issue is necessary to afford him his requested hearing. Accordingly, the case is REMANDED for the following action: 1. In accordance with his June 2013 request, the Veteran should be scheduled at the earliest available opportunity for a hearing with a Veterans Law Judge at the RO in Huntington, West Virginia, in accordance with applicable procedures. 2. The RO/AMC should obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Specifically, this should include VA outpatient treatment records from the Clarksburg VAMC dated from October 2010 to November 2011, and since May 2013. The RO/AMC should ensure that a copy of the August 2011 audiogram is obtained. All records/responses received should be associated with the claims file. 3. After all records and/or responses have been received, the RO/AMC should schedule the Veteran for a VA audiology examination to assess the nature and etiology of his hearing loss and tinnitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. The examiner should clearly report findings pursuant to 38 C.F.R. § 3.385. After examining the Veteran and reviewing the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that any current hearing loss and/or tinnitus is related to combat noise exposure trauma during service. The examiner should consider and address the Veteran's statements that he experienced hearing loss and tinnitus after firing weapons in service. The examiner is instructed that exposure to acoustic trauma during service is conceded and the Veteran's statements regarding experiencing hearing loss and tinnitus after firing weapons are accepted as credible. A detailed rationale for all opinions expressed should be furnished. 4. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the most recent December 2010 SSOC (hearing loss and tinnitus) and May 2013 statement of the case (SOC) (ischemic heart disease). If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ CHERYL L. MASON 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).