Citation Nr: 1343495 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-35 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a chronic respiratory disorder to include bronchitis, asthma and/or costochondritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from May 2003 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in part, denied service connection for bronchitis, hearing loss and tinnitus. In February 2013, the Board remanded this matter for additional development. 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 development undertaken by the originating agency is not in substantial compliance with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Of note it does not appear that all available VA records have been obtained. The Veteran is noted to have reported having had treatment at the VA medical Center (VAMC) in Temple, Texas between 2006 and 2010, and the VAMC in Winston-Salem, North Carolina between 2010 and 2013, as pointed out in a June 2013 statement. The electronic file does contain records from the Winston-Salem VAMC from July 26, 2010 to March 13, 2013, (Marked as "Capri" in Virtual VA, consisting of 57 pages) and from the Temple, Texas VAMC from January 13, 2009 to June 10, 2010 (Marked as "Unknown" in Virtual VA, consisting of 140 pages). However records from the Temple, Texas VAMC beginning around 2006 to January 13, 2009 have not been obtained and are presumed to be in VA's constructive possession. Additionally, the Board notes that records from the Winston-Salem VAMC indicate that the Veteran had requested an audiology consult on June 1, 2010, and that one was placed. However subsequent treatment records do not reveal that he was seen by audiology after this, and there appears to be a gap of treatment between June 10, 2010 and July 26, 2010 (during which time treatment was apparently changed from Winston-Salem North Carolina to Temple Texas). Further clarification is necessary to determine whether the Veteran ever underwent an audiology evaluation after the consultation after June 1, 2010, and if attendance to such an evaluation is verified the records of such evaluation must be obtained. Finally the Board notes that the most recent supplemental statement of the case issued in June 2013 appears to have not reviewed the VA treatment records from Temple, Texas VAMC from January 13, 2009 to June 10, 2010 (Marked as "Unknown" in Virtual VA, consisting of 140 pages), as this is not listed among the evidence reviewed. Thus the RO must ensure review of these records which were marked in an unclear fashion in the electronic folder, and also must ensure that the VA examiner reviews these records as well. Accordingly, the case is REMANDED for the following action: 1. Obtain the remainder of the Veteran's medical records from the VAMC in Temple, Texas pertaining to hearing loss, tinnitus (or other ear dysfunction) and/or a respiratory disorder from around 2006 to January 13, 2009. Additionally clarify whether the Veteran underwent a VA audiology consultation and the time and location of such VA audiology consultation following the placement of such consultation on June 1, 2010. If it is confirmed that he underwent a VA consultation after June 1, 2010, obtain the records of such audiology consultation. Continue to request the VA records, either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Thereafter, the originating agency should readjudicate the Veteran's claims, considering all evidence, including any additional outpatient treatment records received. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. An appropriate period of time should be allowed for response. 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. 2013). _________________________________________________ THOMAS J. DANNAHER 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).