Citation Nr: 1340880 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-01 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The appellant served on active duty from January 1955 to January 1957. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefit sought on appeal. This case was most recently before the Board in December 2012 when the Board denied the appellant's claim for service connection for a bilateral hearing loss disability. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2013, the Court issued an order granting an August 2013 joint motion to remand (JMR) the claim to the Board. The case has since been returned to the Board for action consistent with the terms of the joint motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran asserts that he has a current bilateral hearing loss disability related to a blast injury during service in 1955 that reportedly resulted in ruptured eardrums and decreased hearing for which he received inpatient hospital treatment at Camp Chaffee in Fort Smith, Arkansas. The Veteran's service records are fire-related and therefore unavailable for review. In August 2013, the Court remanded this claim to the Board as it was agreed that the Board erred, in relevant part, by not ensuring that VA had made reasonable efforts to obtain Federal records of the appellant's reported 1955 in-service hospitalization. Specifically, in attempting to obtain the above referenced active service inpatient hospital records, the AMC requested from the NPRC via incorrect PIES code M05, medical/dental and Surgeon General's Office records, including a search for morning reports, pertaining to the appellant. Inpatient (or "clinical") service hospital records are generally retained by the treating hospital and later forwarded to the NPRC where they are archived by facility rather than by patient. See National Archives, "Clinical (Hospital Inpatient) Records - for former Active Duty Personnel," at http://www.archives.gov/st-louis/military-personnel/public/active-duty-medical-records.html (last visited December 5, 2013); M21-1MR, Pt. III, Subp. Iii, Chap. 2, Sec. D.23.a (Oct. 2, 2012) (explaining how to obtain inpatient clinical records via PIES code C01 when inpatient clinical records are needed because outpatient treatment records do not contain any or sufficient documentation about hospitalization). Thus, a remand is necessary for VA to make as many requests as are necessary to obtain records of the appellant's reported in-service hospitalization in 1955, or to establish that such records are not available. See 38 C.F.R. § 3.159(c)(2). The Board observes that the record contains a July 2006 VA audiological and hearing aid evaluation, which notes testing at that time revealed a moderate gradually sloping to severe sensorineural hearing loss bilaterally from 250 to 8000 Hz. In its prior decision, the Board incorrectly observed that the evaluation was not performed by a state-licensed audiologist. The Board recognizes that the progress note was signed by an audiologist. This progress note suggests that the Veteran may have undergone audiometric testing in July 2006. A copy of the results of this testing do not appear to be associated with the claims folder. On remand, the RO should attempt to locate audiometric testing from July 2006. If such records are not available, the RO should document such in the claims folder. Finally, the Board notes that although the Veteran has been diagnosed with "hearing loss" at times during the appeal period, no reliable audiometric test results demonstrating hearing loss for VA purposes under 38 C.F.R. § 3.385 are currently of record. VA has attempted to test the Veteran's hearing acuity on several occasions, in February 2007, March 2011, and May 2012. At these examinations, the Veteran's test results could not be verified because of "inconsistent" responses by the Veteran. In light of the fact that the Board must remand this case for records development anyway, it will also afford the Veteran another opportunity to cooperate with VA examiners in an effort to obtain accurate, reliable audiometric test results that verify a current disability for VA purposes. The Board wished to make clear that VA does not have a unilateral responsibility to ensure that the evidentiary record is developed to its fullest extent possible; the Veteran must cooperate in this development, and his failure to cooperate may precipitate action adverse to the interests of his claim to include denial of his claim. 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) (2013). Expedited handling is requested.) 1. Obtain relevant ongoing VA treatment records, if any, from the Westside Chicago VAMC dating since February 2012. In addition, obtain a copy of audiometric testing performed in July 2006. Efforts to obtain these records should be memorialized in the claims file. If additional audiometric testing records from July 2006 are not available, such unavailability should be documented in the claims file. 2. Contact the NPRC, to include via PIES request using code C01 for clinical hospital inpatient records, and request active duty inpatient records pertaining to the appellant and treatment received for ruptured eardrums, bleeding ears and loss of hearing following a field training blast injury in 1955 at the Camp Chaffee base hospital in Fort Smith, Arkansas. See M21-1MR, Pt. III, Subp. Iii, Chap. 2, Sec. D.23.a (Oct. 2, 2012). If any such records cannot be found, or if they do not exist, request confirmation of that fact and make a formal finding of such unavailability. See 38 C.F.R. § 3.159(c)(2). 3. Inform the Veteran in writing prior to an audiological examination that his cooperation is essential in order to obtain an adequate examination report and that failure to cooperate with the VA examiner when he is provided a VA audiological examination may negatively impact his claim for benefits. 4. After completion of all of the above, the Veteran should be afforded a VA audiological examination to assess the current nature and etiology of his claimed bilateral hearing loss disability. The Veteran's claims file, and a copy of this REMAND should be forwarded to the examiner for review, and the report should reflect that such review occurred. After review of the claims folder, and upon examination of the Veteran, the VA examiner should indicate whether the Veteran has a bilateral hearing loss disability for VA purposes, as specified under the provisions of 38 C.F.R. § 3.385. If the Veteran does have a current hearing loss disability, the examiner should then provide an opinion with supporting clinical rationale as to whether the Veteran's current hearing loss disability is as likely as not (50/50 probability or better) caused by, or otherwise related to his active duty military service, to include his claimed in-service noise exposure from an explosion during training. The examiner should assume for the purposes of this opinion that in-service acoustic trauma did in fact occur during the Veteran's service, as he so describes. If the Veteran's service treatment records are obtained, the examiner is requested to specifically comment upon the results of each audiometric test in the Veteran's service treatment records, and the relevance, if any, of any auditory threshold shift documented therein. If the examiner finds no hearing loss in service, he or she must address whether any current hearing loss is as likely as not attributable to in-service noise exposure on the basis of a delayed onset theory of causation. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. A report should be prepared and associated with the Veteran's VA claims folder. 5. After completing the above, and any other development deemed necessary for adjudication of the claim, review the record and readjudicate the claim. If the benefit sought on appeal is not granted, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims file should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DAVID L. WIGHT 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).