Citation Nr: 1323849 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-19 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from February 1969 to November 1970, with additional service in the Army National Guard and the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in April 2013 before the undersigned. A copy of the transcript has been associated with the claims file. At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(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 While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. At his April 2013 hearing, the Veteran and his representative noted that some of the service treatment records (STRs) associated with the claims file are for a different veteran of the same name. The Board notes that the Veteran reported his date of birth in January 1947. Some of the STRs of record are for a veteran born in October 1946. Further, the Veteran reported one previous marriage in his March 2009 application for benefits and provided the name of S. F., his first spouse. The STRs for the Veteran born in October 1946 list B. F. as his spouse. It is clear from the record that the Veteran's STRs are not complete. On remand, the RO must attempt to obtain the Veteran's complete STRs. Further, the RO received the Veteran's Army National Guard Retirement Points History Statement showing the Veteran's points from February 1969 to December 2003. The record does not contain his actual dates of active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). His complete Army National Guard STRs have not been obtained. On remand, the RO must verify the Veteran's dates of ACDUTRA and INACDUTRA with the Army National Guard and obtain his complete Army National Guard STRs. Lastly, the Veteran underwent a VA examination for bilateral hearing loss and tinnitus in August 2009. The examiner relied in part upon a December 1971 STR showing normal hearing when she provided a negative opinion. The December 1971 STR was for the incorrect Veteran, as shown by the October 1946 birth date. The negative opinion is therefore not adequate because it is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). On remand, a supplemental opinion is required. Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to verify all of the Veteran's dates of Army National Guard and Reserve component service, including all dates of additional active duty, ACDUTRA, and INACDUTRA with the Army National Guard and the Reserves. The RO is advised that the Veteran's correct date of birth is in January 1947 and that records for a veteran by the same name who was born in October 1946 should not be associated with the claims file. 2. The RO must request the Veteran's treatment records from his Army National Guard and Reserve component service. Requests should be made to the National Personnel Records Center, the Records Management Center, and/or the Veteran's Army Reserve unit or any other location, as appropriate. The RO must ensure that the records obtained are for the correct Veteran. All negative responses must be documented. If the records are not obtainable, the Veteran must be properly notified. 3. Review the claims file and ensure the development actions have been conducted and completed. Then, return the Veteran's claims file and a copy of this remand to the examiner who conducted the August 2009 examination. If that examiner is no longer available, provide the Veteran's claims file and remand to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the supplemental opinion is to determine the nature and etiology of bilateral hearing loss and tinnitus. Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current hearing loss and tinnitus began in, are related to a period of service (to include verified active duty for training), or were aggravated during service (to include active duty for training). The examiner must accept as true that the Veteran was exposed to noise during his period of active duty because he served as an artillery crewman while in the Republic of Vietnam. With regard to bilateral hearing loss, the examiner must take into account the Veteran's competent and credible statement that he began to experience it while on active duty and that his symptoms have continued to the present. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. 4. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise 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). _________________________________________________ K. PARAKKAL 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).