Citation Nr: 1329249 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-23 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971, with additional service in the Army Reserves. This matter is on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St Louis, Missouri. In March 2011, the Board remanded the Veteran's claim for additional evidentiary development and for due process reasons. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. 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 Although the Board sincerely regrets the delay, a review of the evidentiary record reveals that the claim for service connection for a bilateral hearing loss disability must be remanded for further evidentiary development and to ensure due process, for reasons explained below. As an initial matter, the precise dates of the Veteran's service are not entirely clear. The Veteran's DD Form 214 indicates service in the United States Army from November 1968 to November 1971. However, in a May 1999 claim for benefits, the Veteran indicated a period of active service in the Army Reserves from June 1972 to June 1974. The Veteran's service treatment records (STRs) include reports of physical examinations from the Reserves dated in January 1974 and May 1976. However, the specific dates of the Veteran's service are still unclear. Since Veteran status depends, in part, on whether the Veteran's disability was incurred in or aggravated during active service, or active or inactive duty for training, the Board finds that further attempts should be made to obtain documentation of the specific dates of service and any additional STRs. In addition, the most recent VA treatment records that have been associated with the Veteran's paper claims file are dated in March 2007 and no treatment records have been associated with the Virtual VA electronic claims file. Accordingly, as any records of VA treatment since March 2007 might contain information relevant to the Veteran's claim on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). With regard to the merits of the Veteran's bilateral hearing loss claim, the record reflects that she was afforded a VA audiological examination in April 2010 at which time the hearing test could not be performed. Pursuant to the March 2011 Board remand, the RO was to schedule the Veteran for a VA examination to determine the current nature and etiology of any current bilateral hearing loss found. An April 2011 report of contact completed on the day of the examination indicates that she did not report for the examination due to car issues; a few days later she further claimed that she did not receive the notice of examination and verified her current address. The RO then scheduled a second examination in June 2011 which the Veteran again failed to attend, explaining in a September 2011 letter that she had moved and provided her current mailing address. She again requested that the VA examination be rescheduled and that notice of the same be sent to her current address; this address was confirmed by the Veteran's representative in an August 2012 informal hearing presentation. Although the RO has tried to provide the Veteran a VA examination, it has effectively been prevented from doing so by the Veteran's failure to keep the RO properly informed of changes in her mailing address. Moreover, adjudication of this appeal has been delayed as a direct result of the Veteran's inaction. Nonetheless, because the Board is already remanding this claim for verification of the Veteran's dates of service, any outstanding STRs, and outstanding VA treatment records, the AMC should also provide the Veteran another opportunity to undergo a VA examination to assess the nature and etiology of her bilateral hearing loss. This will ensure VA meets the duty-to-assist. Accordingly, the case is REMANDED for the following actions: 1. Contact the United States Army Personnel Center, or any other appropriate service department office, and obtain service personnel records, including the Veteran's NGB Form 22 and any DD Forms 214 that have not already been obtained and associated with the Veteran's claims file, and complete service treatment records that document the specific dates of the Veteran's active duty, and active and inactive duty training for all periods of service and associate them with the claims file. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c), and give her an opportunity to respond. 2. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent medical records and associate them with the physical OR virtual claims file, to include associating with the claims folder all pertinent VA treatment records dated from March 2007, to the present. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 3. Then, schedule an appropriate VA examination to determine the nature and etiology of any current bilateral hearing loss disability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should also fully describe the functional effects caused by the Veteran's hearing loss. The rationale for all opinions should be provided. Specifically, the examiner should provide the following information: (a) Diagnose any current bilateral hearing loss disability. (b) Is it at least as likely as not (50 percent or more probability) that any current bilateral hearing loss disability was incurred in or aggravated by the Veteran's active service? The examiner is requested to consider and comment specifically on the Veteran's statements regarding the incurrence of a bilateral hearing loss disability and claimed in-service noise exposure, in addition to her statements regarding the continuity of symptomatology. If the examiner determines that he or she cannot provide an opinion on the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. 4. If the Veteran fails to appear for the examination, a copy of the letter notifying the Veteran of the date, place, and time of her examination should be included in the claims file. The Veteran should also be made aware that her failure to report for this examination without good cause shown may have a detrimental effect on the adjudication of her claim. 38 C.F.R. § 3.655. 5. Thereafter, readjudicate the Veteran's claim. If any benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case, and an appropriate period of time should be allowed for response before the case is returned to the Board. 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). _________________________________________________ Michael J. Skaltsounis Acting 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) (2013).