Citation Nr: 1326046 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-29 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1960 to September 1960. The Veteran also has an unverified period of service with the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. The Board has reviewed the Veteran's Virtual VA file and notes that the March 2013 Board hearing transcript has been associated with the electronic file. This document has also been associated with the Veteran's claims file. The issues of entitlement to service connection for a heart disorder, high blood pressure, white blood cell problems, and an eye infection, all to include as due to chemical exposure, have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction. See the January 2013 Veteran's Supplemental Claim for Compensation. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In May 2008, the Veteran was afforded a VA audiological examination to determine the etiology of his claimed bilateral hearing loss and bilateral tinnitus. Upon review of the claims file, the VA examiner noted that the Veteran displayed bilateral moderate high frequency hearing loss during his period of Reserve duty, according to an April 1987 report of medical examination. After audiological testing and eliciting a personal history from the Veteran, the VA examiner diagnosed the Veteran with tinnitus and sensorineural bilateral hearing loss. As to whether the Veteran's bilateral hearing loss and bilateral tinnitus are related to his military service, the VA examiner concluded that she was unable to resolve the issue without resort to speculation. The VA examiner explained that while it is documented he had hearing loss in 1987 based on his service treatment records, to provide an opinion regarding hearing loss resulting from Reserve duties would require considerable speculation, as the Veteran was unable to provide details regarding specific duties or dates of Reserve time. According to the claims file, the Veteran served with the United States Army from March 1960 to September 1960. It also appears that the Veteran served with the United States Army Reserve, but it remains unclear based on the record itself. As such, the Board finds that all of the periods of service have not been verified. The Board notes that only service department records can establish if and when a person was serving on active duty, active duty for training (ACDUTRA), and/or inactive duty for training (INACDUTRA). See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The Board finds that a remand is necessary to clarify the Veteran's service dates, branches of service, and all periods of active duty, ACDUTRA, or INACDUTRA. On remand, the Veteran's complete military personnel records must be obtained and associated with the claims file. The Board finds that after all the dates of the Veteran's service are verified, the Veteran should be afforded an additional VA audiological examination to determine the etiology of his claimed bilateral hearing loss and bilateral tinnitus. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, as the May 2008 VA examiner was unable to reach an opinion regarding the etiology of the Veteran's bilateral hearing loss and bilateral tinnitus, the VA medical opinion is inadequate, and a remand is required in order to obtain an adequate medical opinion. Finally, the Veteran submitted two VA Forms 21-4142, Authorization and Consent to Release Information to VA. According to the VA Forms 21-4142, the Veteran indicated that he received treatment from OSF Saint Anthony Medical Center in Rockford, Illinois and from the New Vision Laser Center in Rockford, Illinois. The Board finds that an attempt should be made to obtain those records, if available, as they are relevant to the issues on appeal. 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. Send the Veteran a new VCAA notice letter. The letter should specifically notify him of the information and evidence necessary to substantiate his claims for service connection based on his Reserve service. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Attempt to obtain the Veteran's medical records from the OSF Saint Anthony Medical Center in Rockford, Illinois and New Vision Laser Center in Rockford, Illinois. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from private facilities. All records/responses should be associated with the claims file. 3. Confirm the Veteran's military service and verify his dates of service. The Veteran should be asked to identify, with as much specificity as possible, each unit to which he was assigned and the dates of those assignments. The RO/AMC should determine whether that service was active duty, ACDUTRA, and/or INACDUTRA, while serving in the Army and Army Reserve, and, to the extent feasible, provide the dates for each period of service. As part of that process, the RO/AMC should attempt to obtain a copy of his DD 214(s) or other separation certificate(s), as well as the Veteran's Official Military Personnel File (OMPF) and/or Military Personnel Record Jacket (MPRJ) or the like. The appropriate agency must be contacted to obtain the records. All attempts to obtain this data, and any responses received, should be documented in the claims file. 4. After completion of #1, #2, and #3 above, schedule the Veteran for a VA audiological examination to determine the current nature and likely etiology of his bilateral hearing loss and bilateral tinnitus. The claims folder must be made available to the examiner in conjunction with the examination and should include a list of the Veteran's actual periods of active duty, ACDUTRA, and INACDUTRA, while serving in the Army and Army Reserve. The report must indicate whether the claims file was reviewed. The examination should include a diagnosis based upon auditory threshold testing in accordance with 38 C.F.R. § 3.385. Based on the examination and review of the record, the examiner should provide a medical opinion as to whether it is at least as likely as not that any currently diagnosed bilateral hearing loss (1) was first manifested during active duty, or is the result of any injury suffered or disease contracted during active duty or ACDUTRA in the Reserve, (2) is the result of any injury sustained during INACDUTRA in the Reserve, or (3) was manifested to a compensable degree within one year after any period of active duty. An explanation must be provided for any opinion or conclusion expressed. 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 (SSOC) 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). _________________________________________________ F. JUDGE FLOWERS 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).