Citation Nr: 1325717 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 12-16 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for more than 11 years, including from August 1941 to October 1945 and from August 1957 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision on behalf of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). 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 appellant if further action is required on his part. REMAND VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). In this case, the Veteran contends that he has hearing loss and tinnitus as a result of combat noise exposure during World War II and noise exposure during a second period of active service as an aircraft mechanic. He reported that he had been hospitalized in service and was at that time treated for slight hearing loss and ringing in the ears. He also reported he was required to wear hearing protection during his post-service employment with a helicopter manufacturing company. Records show his service treatment records are unavailable, possibly due to fire at a government facility; however, morning reports obtained show he reported to sick call in July 1945. The Board finds the Veteran is a combat veteran for compensation purposes and that his reports of combat noise exposure and treatment for slight hearing loss and ringing in the ears during his first period of active service and that his reports of aircraft noise exposure during his second period of service are found to be credible and consistent with the circumstances of his service. In statements dated in September 2010 and November 2011 the Veteran requested that records of his VA treatment dated from July 2007 at facilities in Fort Worth, Texas, and Dallas, Texas, be obtained in support of his appeal. At his hearing in June 2013 he indicated these reports included evidence pertinent to this claims. Although VA treatment records dated from January 2007 to March 2012 were identified as having been considered in a May 2012 statement of the case, the records are not included in the available claims file nor Virtual VA electronic record. The Veteran also testified in June 2013, in essence, that information in the March 2012 VA examination report indicating he had worked as a punch press operator after service was erroneous. In light of the evidence of record, the Board finds further development is required for an adequate determination. Accordingly, the case is REMANDED for the following action: (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.) 1. Appropriate efforts must be taken to obtain all pertinent VA treatment records, including those records dated from January 2007 to March 2012 previously identified as having been considered in a May 2012 statement of the case, unless further efforts would be futile. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. 2. Following completion of the above, the Veteran's claims file should be reviewed by a VA audiologist for an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that his present hearing loss and tinnitus developed as a result of combat and aircraft noise during active service. The examiner must acknowledge that the Veteran's reports of combat and aircraft noise exposure in service have been found to be credible and that he disputes the information in a March 2012 VA audiology examination report indicating that he had worked as a punch press operator after service. Opinions must consider the Veteran's credible statements as to events during service and should adequately consider his statements as to post-service noise exposure history. A complete rationale for all opinions expressed should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review of all issues for which an appeal has been perfected, 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). _________________________________________________ BARBARA B. COPELAND 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).