Citation Nr: 1333799 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-37 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from May 1976 to August 1976, from March 1980 to October 1984, and from February 2003 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board in May 2011, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for bilateral hearing loss disability can be decided. The Veteran claims that he has bilateral hearing loss disability as a result of noise exposure during active service. A review of the Veteran's service medical records and service separation form shows that his military occupational specialty (MOS) during service was Motor Transport Operator and Infantryman and that he had service in Kuwait. Based on his MO, the Board has conceded exposure to some hazardous noise in active service. In a May 2011 remand, the Board directed that the Veteran be afforded a VA examination to determine the current level of severity of his hearing loss. The Board notes that, in accordance with the directives of the May 2011 remand, the Veteran was scheduled for a VA examination in June 2011, but he failed to report to the examination, and did not provide good cause for not reporting. In a March 2012 supplemental statement of the case, the Veteran was informed that as a result of his failure to appear for the requested examination, his case would be decided based on the evidence of record. As VA made an attempt to provide the Veteran an audiological examination and the Veteran failed to appear for it, the Board finds that the development conducted in this case regarding the VA examination is in compliance with the May 2011 remand directives. The duty to assist is not a one-way street. If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). In addition, the Board requested that the Veteran's service medical records be obtained because they appeared to be incomplete at the time of the remand. Based on a memorandum dated February 2012, it appears that only copies of the Veteran's reserve service medical records were requested, and that no reserve records were available. However, it appears that medical records associated with the Veteran's active service were not requested. Nor are there entrance or separation examinations for any period of the Veteran's active service associated with the Veteran's claims file. Therefore, the Board concludes that the development conducted does not adequately comply with the directives of the May 2011 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates another remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, current VA treatment records should be obtained prior to a decision being made in this case. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file. Associate those records with the file. 2. Obtain the Veteran's service medical records from his periods of active service. Document all efforts to obtain those records in the file, and place copies of that documentation in the claims file. If the records cannot be obtained, make a formal finding that the records and unavailable and notify the Veteran and request that he submit any service records in his possession. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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).