Citation Nr: 1338537 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-22 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from February 1978 to February 1981, September 1981 to October 1983, and April 2006 to June 2007. This appeal to the Board of Veterans' Appeals (Board) is from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 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 VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate this claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran filed a claim for service connection for a left ankle fracture in 2007. Concurrent with that, the RO requested his service treatment records (STRs) from his Iraq deployment from the Record Management Center (RMC) and his Reserve Unit (6th Brigade). Neither the RMC nor the Reserve Unit located his records, but the Reserve Unit stated that "when the soldier was mobilized, all records were forwarded to the mobilization station." The RO did not attempt to obtain his STRs from the mobilization station, and it issued a formal finding of unavailability in September 2007. The Veteran filed a claim for service connection for bilateral hearing loss in May 2012. The Veteran was provided with Veterans Claims Assistance Act (VCAA) notice in June 2012, but this notice did not inform him of the missing records. Where, as here, service records have been lost or destroyed through no fault of the Veteran, the Court has held that there is a heightened obligation on the part of VA to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). To this end, VA also must inform him that he can submit evidence from "alternative sources" in place of, so as a means of compensating for, his missing STRs. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, outlines the procedures that are to be followed in obtaining STRs from "alternative sources." Examples of such alternate evidence include the VA military files; statements from service medical personnel; 'buddy' certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, Block b. As the RO failed to notify the Veteran that his STRs are unavailable, and it did not inform him that alternate sources of evidence may be used to substantiate his claim, this claim must be remanded to provide him this necessary procedural due process notice. Additionally, the Veteran informed the September 2012 VA examiner that he had an audiogram conducted at the Greenville Community Based Outpatient Clinic (CBOC). This record does not appear in the claims file, so it must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claim on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records for any treatment of his bilateral hearing loss. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. In particular, the RO must obtain all records from the Greenville CBOC (including the audiogram discussed in the September 2012 VA examination) dated after October 2010, and all records from the Spartanburg CBOC dated after May 2011. 2. Despite the September 2007 formal finding of unavailability, the RO/AMC must request the Veteran's STR's from the Records Management Center, his Reserve Unit, and his "mobilization station" (or any additional appropriate U.S. Government agency). If his STR's ARE NOT located at any of these three locations, (1) issue another formal finding of unavailability, and (2) send the Veteran a Veterans Claims Assistance Act (VCAA) letter notifying him that he may submit "alternative sources" of evidence in place of his missing STRs. This letter must also specifically advise him that examples of such alternate evidence include VA military files; statements from service medical personnel; 'buddy' certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom he was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examinations reports. If his STR's ARE located, associate them with the claims file. 3. After the above development has been completed, schedule another VA compensation examination for a medical nexus opinion concerning the etiology of the Veteran's bilateral hearing loss. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim as it will require deciding this claim based on the existing evidence of record. 38 C.F.R. § 3.655 (2012). The examination should include all necessary diagnostic testing or evaluation and should include consideration of the results of the testing that has been done to date, including during the prior VA compensation examination in September 2012. Therefore, the claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. Based on a comprehensive review of the claims file, as well as the current examination of the Veteran, the examiner is asked to first confirm the Veteran has bilateral hearing loss. Assuming he does, and because the September 2012 examiner found the Veteran's hearing loss in his left ear pre-existed his military service, the examiner must also provide an opinion as to following: (1) Did the Veteran's military service chronically aggravate the pre-existing hearing loss in his left ear, that is, permanently exacerbate the hearing loss in this ear beyond its natural progression? (2) Since, on the other hand, not pre-existing, what is the likelihood (very likely, as likely as not, or unlikely) that the hearing loss in his right ear incepted during his military service or is otherwise related or attributable to his service or dates back to his service? A fully explained opinion must be provided for all conclusions reached. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ Kelli A. Kordich Acting 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).