Citation Nr: 1337951 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-29 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for missing toe nail of the right foot, small toe. REPRESENTATION Veteran represented by: American Legion ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1967 to June 1970. This appeal to the Board of Veterans' Appeals (Board) is from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. A review of the Veteran's Virtual VA file reveals a November 2013 appellate brief. REMAND The Board finds that additional evidentiary development is necessary in order to address the merits of this matter. An addendum opinion is necessary to properly evaluate the etiology of the Veteran's hearing loss disability and tinnitus which he contends are the result of his military noise exposure. The Veteran's DD-214 shows his military specialty occupation as a military policeman. According to VA Fast Letter 10-35, a military policeman has a "moderate" probability of hazardous noise exposure, and as such, the Board will concede some noise exposure. The Veteran was afforded a VA audiology examination in December 2008, and the examiner opined the Veteran's disabilities are not related to service due to a limited history of military noise exposure and normal hearing at separation. The examiner apparently did not consider the possibility of an acoustic trauma in service. Additionally, the examiner did not provide an explanation as to the etiology of the Veteran's tinnitus. Since the December 2008 VA examination, additional evidence has been added to the record. In his August 2009 appeal to the Board, the Veteran stated he was diagnosed with hearing loss in 1973, but the records are unavailable. He also requested that the examiner provide an explanation as to the cause of his current hearing loss and tinnitus. In September 2009, the Veteran submitted lay statements from his spouse, sister, and co-worker as to the etiology of his hearing loss and tinnitus. Also, VA treatment records dating back to July 2003 were added to the claims file. The VA examiner has not yet considered any of these lay contentions and medical evidence. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons stated above, the December 2008 VA opinion is inadequate in view of the current record, and must be returned for clarification. Furthermore, the Veteran was denied service connection for a missing toe nail of the right foot small toe. He submitted a notice of disagreement to the decision in February 2009. The Board notes, however, that the Veteran has not been issued a Statement of the Case. Manlicon v. West, 12 Vet. App. 238 (1999). As such, to protect the Veteran's procedural due process rights, a remand is warranted so that the Veteran can be issued a Statement of the Case and be afforded the opportunity to perfect an appeal on this issue. Inasmuch as the case is being remanded, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all outstanding VA treatment records dated since January 2009 and associate them with the record. Appellant should be contacted to identify any records that might be outstanding, as needed. All attempts to obtain records should be documented in the claims file. 2. After the aforementioned development has been completed, refer the Veteran's claims file to the December 2008 VA examiner who conducted the audiology examination or, if unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's hearing loss and tinnitus. After reviewing the record again, the examiner is asked to clarify whether it is at least as likely as not (a 50 percent or greater probability) that the current hearing loss and tinnitus had its clinical onset during the Veteran's active military service. A complete explanation should be provided. The examiner should comment on the medical evidence of record dating back to July 2003; the Veteran's contention of receiving a diagnosis of hearing loss in 1973; the September 2009 lay statements from the Veteran's spouse, sister, and co-worker; and, the acknowledged acoustic trauma in service. The examiner should also comment on the cause of the Veteran's current hearing loss disability and tinnitus. It should be indicated whether the type of hearing loss found is consistent with acoustic trauma, or is more likely related to infection, disease, advancing age or other non-service related cause. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 3. Readjudicate the issues on appeal. If the benefits sought remain denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. 4. A Statement of the Case should be issued for the claim of entitlement to service connection for a missing toe nail of the right foot, small toe. The Veteran and his representative should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider the issue. If a timely substantive appeal is not filed, the matter should be closed by the RO. The Veteran 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. 2013). _________________________________________________ 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) (2013).