Citation Nr: 1331602 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 09-25 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for chronic tinnitus. 3. Entitlement to service connection for Meniere's disease. 4. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety/depression, claimed as secondary to hearing loss, tinnitus, and Meniere's disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to May 1978, with apparent additional duty in the Air National Guard from March 1985 to March 1993, and from July 1997 to July 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the disabilities at issue. In that regard, it is contended that the Veteran's Meniere's disease had its origin in service, and that his current hearing loss and tinnitus are in some way related to exposure to noise at hazardous levels during active military service. Finally, it is contended that the Veteran's current psychiatric disability is in some way causally related to the aforementioned hearing loss, tinnitus, and Meniere's disease. In that regard, available service treatment records appear to indicate that the Veteran chose not to undergo a service separation examination prior to his discharge from service in May 1978. Moreover, the sole post-discharge service treatment record contained in the Veteran's file consists of a service medical examination conducted in January 1987, during one of the Veteran's periods of duty in the Air National Guard. Significantly, that examination is negative for any of the disabilities at issue. The Board notes that, despite various attempts on the part of the RO, and with the exception of the aforementioned January 1987 service medical examination, no service treatment records from the Veteran's claimed periods of service with the Air National Guard are at this time a part of his claims folder. However, the existence and availability of such service treatment records is at this point somewhat unclear. Similarly unclear is whether there exist service personnel records which could potentially validate certain arguments currently put forth by the Veteran. The Board observes that, in support of his claims for service connection for hearing loss and tinnitus, the Veteran has argued that, in his capacity as a fuel specialist in service, he was exposed to noise at hazardous levels. In that regard, in correspondence of July 2009, one of the Veteran's former service associates indicated that, for much of the time between 1975 and 1978, he and the Veteran "refueled and defueled" all types of aircraft, "sometimes with the jets still running." Further indicated was that the pumps on the fuel trucks utilized to refuel aircraft were "very loud," with the result that "hand signals had to be used to communicate." Based on such statements, and given the Veteran's occupational specialty as a fuel specialist, exposure to noise at hazardous levels in service is conceded. However, further review of the evidence discloses that, subsequent to the Veteran's discharge from service, he experienced occupational noise exposure as his capacity as a machinist and pipefitter. Significantly, to date, no VA examination has been undertaken in an attempt to more clearly delineate the exact nature and etiology of the disabilities at issue. In the opinion of the Board, such an examination would be appropriate prior to a final adjudication of the Veteran's claims for service connection. In light of the aforementioned, and in deference to the request of the Veteran's accredited representative, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO should contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, and any appropriate facility of the Air National Guard, with a request that they verify each and every period of the Veteran's duty, to include a classification as to whether that service was active duty, active duty for training, and/or inactive duty for training. In addition, the AMC/RO should attempt to obtain any and all service treatment and/or personnel records, including records from the Veteran's claimed periods of Air National Guard duty, which are not at this time already a part of his claims folder. If the AMC/RO cannot locate these Federal records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Any pertinent VA or other inpatient or outpatient treatment records subsequent to June 2011, the date of the most recent evidence of record, must then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded VA otologic and audiometric examinations in order to more accurately determine the exact nature and etiology of his claimed hearing loss, tinnitus, and Meniere's disease. The Veteran is hereby notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examinations, the examiners should specifically comment as to whether the Veteran's hearing loss, tinnitus, and Meniere's disease at least as likely as not had their origin during, or are in some way the result of, the Veteran's periods of active military service, to include exposure to noise at hazardous levels during those periods of service, which, as noted above, has been conceded. In providing this opinion, the examiners should take into account the fact that, based on the evidence of record, the Veteran had not only inservice noise exposure, but also postservice occupational noise exposure. If and only if it is determined that the Veteran's hearing loss, tinnitus, and/or Meniere's disease are in some way related to his period or periods of active military service, the Veteran should be afforded a VA psychiatric examination in order to more accurately determine whether his claimed psychiatric disability is in any way causally related to those disabilities. Following that examination, the examiner should specifically comment as to whether the Veteran currently suffers from a chronic, clinically identifiable psychiatric disability, and, if so, whether that disability is at least as likely as not proximately due to, the result of, or aggravated by the Veteran's hearing loss, tinnitus, and/or Meniere's disease. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 4. The AMC/RO should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the AMC/RO must implement corrective procedures. 5. The AMC/RO should then readjudicate the Veteran's claims for service connection for hearing loss, tinnitus, Meniere's disease, and an acquired psychiatric disorder (to include as secondary to hearing loss, tinnitus, and Meniere's disease). Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in October 2009. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 D. LYON 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).