Citation Nr: 1339200 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-38 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a compensable rating for bilateral hearing loss prior to August 7, 1973. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty from September 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Historically, a November 2009 Board decision found that a June 1962 rating decision that denied service connection for tinnitus with defective hearing contained clear and unmistakable error (CUE). Subsequently, in a January 2010 rating decision, the RO effectuated the Board's decision essentially granting service connection for hearing loss and assigned a noncompensable rating effective from May 2, 1962; a 60 percent evaluation effective December 18, 1997; and a 90 percent evaluation from July 3, 2008. The Veteran appealed the issue of entitlement to a compensable evaluation for hearing loss from May 2, 1962, to December 18, 1987. In January 2011, the Board remanded the issue of entitlement to a compensable evaluation for hearing loss from May 2, 1962, to December 18, 1987, for additional development. In a February 2012 rating decision, the RO increased the evaluation assigned the Veteran's hearing loss to 20 percent effective January 9, 1984; the evaluation of 60 percent was continued from December 18, 1987, and the evaluation of 90 percent was continued from July 3, 2008. The Board subsequently issued a decision in May 2012. In that decision, the Board denied a compensable rating for bilateral hearing loss prior to August 7, 1973; granted a 40 percent rating from August 7, 1973 to June 30, 1974; granted a 20 percent rating from July 1, 1974 to January 8, 1984; and denied a rating in excess of 20 percent from January 9, 1984 to December 17, 1987. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2013 Joint Motion for Remand (JMR) filed by the parties, the Court vacated the portion of the decision that denied a compensable rating for bilateral hearing loss prior to August 7, 1973, and remanded that issue back to the Board for further development in compliance with directives specified. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The appeal is REMANDED to the RO. VA will notify the Appellant if further action is required. REMAND The JMR noted that the Veteran reported that he received medical care at the VA facility in Indianapolis, Indiana between the years of 1945 and 1955. In a January 2011 remand the Board directed the RO to attempt to obtain these records. In a May 2011 memorandum the RO made a formal finding of unavailability for medical treatment records from this VA facility that date between 1945 and 1955. The RO notified the Veteran in May 2011 that an attempt was made to obtain these records but was unsuccessful. The Veteran was encouraged to submit any records that he might have in his possession. The parties to the JMR noted that although the record shows that one request was made to the Indianapolis VA Medical Center (VAMC), there is no indication as to whether archived records were searched, and no indication that the Appellant was notified that records could not be obtained. Thus, the Board finds that all records should be requested from the Indianapolis VAMC dating from January 1945 to January 1955, to include any records archived or in a storage facility. 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). Expedited handling is requested.) 1. Request medical treatment records for the Veteran from Indianapolis VAMC dating from January 1945 to January 1955 to include any records archived or in a storage facility. Any negative search must be noted in the claims file and communicated to the Veteran. If it appears that additional attempts to obtain such records would be futile, then another memorandum of unavailability should be drafted and added to the claims folder. 2. Thereafter, the RO should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).