Citation Nr: 1333011 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 12-23 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active military service from July 1946 to March 1949. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 A remand is necessary so that VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim by providing an examination and obtaining a medical opinion. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp 2013); 38 C.F.R. § 3.159(c)(4) (2013). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). The Veteran contends that he has a current hearing loss disability as the result of exposure to loud noise in his military occupation as a truck driver. In a document dated in June 2013, he reported that he underwent truck driving training for three months during such service, after which he was reassigned to work as a carpenter and cook because no trucks were available. Of record is a WD AGO Form 100, Separation Qualification Record, documenting that the Veteran drove one-quarter to two and one-half ton vehicles during service. An August 2011 VA audiology consult note and associated audiogram documents that the Veteran appears to have a bilateral hearing loss disability in both ears based on puretone threshold testing. Importantly, an August 2006 Personnel Information Exchange System response shows that the Veteran's service records, including his service treatment records, are deemed to have been destroyed while in the possession of the U.S. Government. Therefore, VA's duty to assist is heightened in this case. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). It is noted that VA has already determined that he has status as a veteran. Based on the facts outlined above and VA's heightened duty in this case, the Board concludes that VA must provide the Veteran with an audiology examination and obtain an expert opinion as to whether any hearing loss disability is etiologically related to his active service. Additionally, the most recent records of VA treatment of the Veteran associated with the claims file are from April 2013. On remand, the Agency of Original Jurisdiction (AOJ) must obtain any more recent relevant records of VA treatment of the Veteran and associate them with the claims file. Turning to another matter, the record does not include adequate notice as to the evidence that the Veteran may submit in lieu of his service treatment records. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005) (citing the holding in Dixon v. Derwinski, 3 Vet. App. 261 (1992) that when VA is unable to locate a claimant's records it must advise the claimant to submit alternate forms of evidence). In a September 2011 letter, the RO provided content complying notice, however, it identified the claim as one for service-connected death benefits. Based on this incorrect identification, the Board concludes that the letter did not provide adequate notice. On remand, the AOJ must provide the Veteran with adequate notice. Finally, received in August 2012, is a statement in which the Veteran requested a hearing before a local hearing officer. On remand, the AOJ must obtain clarification from the Veteran and afford him an appropriate hearing if he desires one. 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. In response to the August 2012 VA Form 4138, send a letter to the Veteran and his representative asking for clarification as to the type of hearing the Veteran desires and proceed accordingly. 2. Send a letter to the Veteran informing him of the kinds of evidence he can submit in lieu of his service treatment records with regard to his claim of entitlement to service connection for hearing loss. 3. Obtain all relevant records of VA treatment of the Veteran after April 2013 and associate those records with the claims file. 4. After completing the above directives, ensure that the Veteran is scheduled for a VA audiology examination. The examiner is asked to provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss had onset during or was caused by his active service. In doing so, the examiner must accept as fact that the Veteran was exposed to loud noise from large trucks during his active service. The examiner also must elicit from the Veteran information as to the history of his hearing loss. The examiner is cautioned that the Veteran's service treatment records are deemed to have been destroyed while in the possession of the U.S. Government and the examiner may not rely on the absence of the records in a manner unfavorable to the Veteran. The examiner must provide a complete rationale for any conclusion reached. 5. Then readjudicate the issue of entitlement to service connection for hearing loss. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto prior to returning the matter to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). _________________________________________________ JONATHAN B. KRAMER 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).