Citation Nr: 1339724 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-29 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In addition to the paper claims file, there is an electronic claims file associated with the appellant's claims, known as Virtual VA. A review of the documents in such file reveals that they contain VA treatment records relevant to the current appeal. 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. REMAND Remand is required in this appeal for an examination and etiological opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). VA's duty to assist includes providing a medical examination when necessary: such an examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran contends that he has bilateral hearing loss and tinnitus that were caused by exposure to acoustic trauma in service. The Veteran's DD Form 214 lists his Military Occupational Specialty as Telephone Equipment Installation Repairman. The Veteran's March 1967 separation examination shows no decrease in hearing from his July 1963 entrance examination audiological test findings. The service treatment records are otherwise silent for any complaints or treatment related to hearing loss or tinnitus. In 2011 VA records, the Veteran denied hearing loss or tinnitus. In May 2012 the Veteran reported having experienced tinnitus and dizziness since that morning, but noticed no decline in his hearing. Nevertheless, the Veteran's representative has submitted statements indicating that the Veteran was exposed to flight line noise exposure in service, which damaged his hearing, and that he does have hearing loss and tinnitus currently. Additionally, the record indicates that the Veteran has received medical treatment at the VA St. Louis Health Care System and its affiliated facility, the St. Charles Clinic in O'Fallon, Missouri. The record currently contains the Veteran's VA treatment records from February 2011 to May 2012. Any outstanding, pertinent VA treatment records dated since May 2012 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2013) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA St. Louis Health Care System and the St. Charles Clinic all outstanding, pertinent records of medical treatment of the Veteran since May 2012. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding the requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA audiological examination with a qualified audiologist to determine the nature and etiology of any current bilateral hearing loss or tinnitus. The claims folder, access to Virtual VA, and a copy of this remand must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims file and Virtual VA treatment records have been reviewed. All appropriate testing should be conducted, and the examiner should state whether the Veteran has current diagnoses of hearing loss and tinnitus. The examiner must then provide an opinion as to whether it is as likely as not (that is, a probability of 50 percent or greater) or less likely than not (that is, a probability less than 50 percent) that any current hearing loss disability and tinnitus disability had their origin in service or are in any way related to the Veteran's active service. The examiner must discuss the Veteran's lay assertions regarding exposure to flight line and other aircraft noise in service without hearing protection. In responding the examiner is also asked to indicate whether there is other likely etiology of hearing loss, if unrelated to service, to include advancing age, infection, or other cause. If the examiner is unable to provide the opinion requested, that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the diagnosis or causation of any disorder is unknowable. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all examiners documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. MILLIKAN 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) (2013).