Citation Nr: 1330815 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-39 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a higher initial (compensable) rating for right ear hearing loss REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on confirmed active duty from January 17, 1983 to June 6, 1983; January 25, 1991 to March 26, 1991; and June 5, 2003, to May 19, 2004. Additional service with the Army National Guard of Arkansas is suggested by the record. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In a March 2008 rating decision, the RO denied service connection for tinnitus and a left leg disability. In a June 2008 rating decision, the RO granted service connection for right ear hearing loss and assigned a noncompensable (zero percent) evaluation and denied service connection for left ear hearing loss. In October 2009, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge of the Board. A copy of the transcript has been associated with the record. In March 2010, the Board remanded the claims for service connection for tinnitus, a left leg disability, left ear hearing loss, and a higher initial rating for right ear hearing loss to the Appeals Management Center (AMC) for development. The AMC granted service connection for a left leg disability in March 2011. As the rating decision granted service connection for a left leg disability, that issue is not in appellate status. In July 2013, the Board advised the Veteran that the Acting Veterans Law Judge who presided at the October 2009 videoconference hearing was no longer with the Board. The letter advised the Veteran that he had the option to testify at a hearing before another Veterans Law Judge who would decide the claim. The letter advised the Veteran that if he did not reply within 30 days of the date of the letter, the Board would assume that the Veteran did not wish to attend another hearing. The Veteran has not responded. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND In March 2010, the Board directed the AMC verify all of the periods of the Veteran's active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) and that service treatment records and all service personnel records from the Veteran's active duty and ACDUTRA be obtained. While additional service personnel records were added to the record, the record does not indicate whether they were submitted by the Veteran or obtained by the AMC. In addition, a private examiner sent VA a single January 2007 document that appears to be a service treatment record - as noted, the Veteran has confirmed active service at various times up to May 2004. This document indicates the result of a Speech Recognition in Noise Test (SPRINT test), used in determining the speech recognition scores for service personnel. The private examiner noted that the Veteran needed a referral for a complete hearing test. This record suggests the existence of further service treatment records that may not have been obtained. In April 2010 letter the RO advised the Veteran that it would be seeking his service treatment records from the service department and requested that he provide any in his possession. However, the only action the AMC appeared to have taken in obtaining outstanding service treatment records following the March 2010 Remand was to send a request via electronic mail to the VA Records Management Center (RMC) in May 2011. The RMC subsequently replied via electronic mail that it did not have any records. The record contains no indication that the AMC subsequently contacted the Arkansas National Guard to attempt to obtain any records in its possession. The record also contains no indication that the AMC attempted to verify the Veteran's periods of active duty, ACDUTRA, and INACDUTRA, as requested in the March 2010 Remand. In addition, in a January 2009 VA treatment record, a VA examiner indicated that she had performed an audiology test and noted that the audiogram could be viewed on the VA Medical Center's (VAMC's) computer system under "Tools, Audiogram Display." As the Board does not have access the VAMC's computer system, a copy of this audiogram, and any outstanding VA or private treatment records should be obtained for the record. In a January 2010 VA audiology examination report, provided in accordance with the March 2010 Remand requests, a VA examiner wrote that the puretone thresholds recorded that day were of "poor/fair reliability" and that "word recognition scores were not reported as they were considered unacceptable due to the pattern of responses." As part of this remand, the Board will request an additional VA audiology examination be performed. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must verify all periods of active duty, ACDUTRA, and INACDUTRA. 2. The RO/AMC must obtain and associate with the claims file any outstanding service treatment records, by contacting the RMC, the Arkansas National Guard, and any other depository. 3. The RO/AMC must ensure that the Veteran is provided with the necessary authorization and release forms to procure any outstanding private treatment records; AND THE RO/AMC MUST obtain a copy of the January 2009 VA audiogram mentioned in the record. 4. After the accomplishment of the above, schedule the Veteran for a VA audiology examination to determine the severity of the Veteran's right ear hearing loss. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Using the Maryland CNC test and any other tests that may be required, the examiner must report the current level of hearing loss, to include reporting of puretone threshold averages and percentage speech discrimination scores. The VA examiner MUST describe the functional effects caused by the Veteran's right ear hearing loss disability. If the VA examiner finds that the audiology examination test results are invalid, the VA examiner must specifically list the reasons for this finding. The examiner must provide an explanation for any opinion expressed. The clinician is advised that if a conclusion cannot be reached without resort to speculation, he or she must so indicate in the examination report. 5. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2011). The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ Vito A. Clementi 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).