Citation Nr: 1509367 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 13-04 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971, to include service in Vietnam from August 1969 to August 1970. He received the Combat Infantryman Badge and Purple Heart Medal, among other awards and decorations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in pertinent part, denied service connection for bilateral hearing loss. In July 2013, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been prepared and associated with the record on appeal. During the June 2013 hearing, the undersigned agreed to hold the record open for a period of 60 days to allow for the submission of additional evidence. The Veteran thereafter submitted additional evidence in support of his appeal, along with a written waiver of his right to have the agency of original jurisdiction (AOJ) review the evidence in the first instance. See 38 C.F.R. § 20.1304(c). The Board notes that, in addition to the paper claims file, there are also electronic (Virtual VA and Veterans Benefits Management System (VBMS)) paperless claims files associated with the Veteran's claim. The electronic files include additional materials, including the transcript of the July 2013 Board hearing, which the Board has reviewed. For the reasons set forth below, this appeal is being REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND When the Veteran filed his claim for service connection for bilateral hearing loss in October 2010, he reported receiving relevant treatment at the VA Medical Center (VAMC) in Cleveland, Ohio (Wade Park Campus) and the VA Community Based Outpatient Clinic (CBOC) in New Philadelphia, Ohio. Although a January 2013 statement of the case (SOC) appears to reflect that the AOJ reviewed records from the Cleveland VAMC, dated from August 2002 to April 2011, those records have not been associated with the record on appeal so as to permit the Board to review them. Additional development is therefore required. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). When the Veteran was examined for VA compensation purposes in November 2010, he reported that he had been exposed to noise from generators while serving as a member of the Army Reserve. Thus far, it does not appear that any effort has been made to obtain the service treatment and personnel records associated with his reserve service. Inasmuch as those records could bear on the outcome of his appeal, efforts must be made to obtain them. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). The VA audiologist who examined the Veteran in November 2010 concluded, in effect, that it was unlikely that the Veteran's hearing loss was related to service. However, in so doing, she did not comment upon the medical significance, if any, of the fact that the puretone threshold in the right ear at 2000 Hertz was five decibels higher at the time of the Veteran's December 1970 service separation examination than it was in May 1968, when he was examined for induction. Under the circumstances, and in light of the fact that additional evidence has since been received, the Board finds it necessary to have the Veteran re-examined. For the reasons stated, this case is REMANDED for the following actions: 1. Request from all appropriate source(s) copies of the Veteran's complete service treatment and personnel records pertaining to his service in the Army Reserve, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, must be associated with the record on appeal. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VAMC in Cleveland Ohio (Wade Park Campus) and the VA CBOC in New Philadelphia, Ohio, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained must be associated with the record on appeal. 3. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an audiologist or ear, nose, and throat physician. After reviewing the claims file, examining the Veteran, and conducting audiometric and speech discrimination (Maryland CNC) testing of both ears, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss can be attributed to his active duty or reserve service, to include any in-service exposure to noise. In so doing, the examiner should specifically discuss the medical significance, if any, of the upward shift in the auditory threshold at 2000 Hertz in the right ear (from 0 to 5) between May 1968 and December 1970. For analytical purposes, the Veteran's exposure to excessive noise during combat in Vietnam should be conceded. A complete rationale for all opinions must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC (SSOC). An appropriate period of time should be allowed for response. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2014).