Citation Nr: 1549823 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 14-40 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for appendicitis. 3. Entitlement to service connection for a right jaw condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1953 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In May 2014 the National Personnel Records Center reported that the Veteran's service treatment records were destroyed in a 1973 fire at the facility. NPRC recommended that VA make a request through "M05-V." In June 2014, the Veteran submitted a completed Request for Information Needed to Reconstruct Medical Data (NA Form 13055). However, it does not appear the AOJ has taken any further development action after receiving the completed form. While the Veteran provided the years, and not the months, of reported in-service treatment, he was not advised of the need for additional information and VA may have a duty to search for records during the entire reported period. Gagne v. McDonald, No. 14-0334 (Oct. 19, 2015). Destruction of service medical records creates a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist in the development of a claim, and to explain its decision, if the claim is denied. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service medical records are missing, VA must search alternate sources. Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, the Veteran has not been provided an examination regarding his claims. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold to trigger VA's duty to provide an examination is low. Id. at 83. The duty to assist is heightened when service treatment records are missing. Cromer. The Veteran is competent to discuss the onset of disabilities that are observable through his senses, such as tinnitus and a right jaw condition. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). The Veteran is also competent to report his medical history, such as treatment for appendicitis. The Veteran has asserted he was treated for the claimed disabilities in service. Thus, a VA examination is necessary regarding the claims, especially in light of VA's heightened duty to assist in the development of the claims due to the destruction of the Veteran's service treatment records. 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. Take the necessary development action on the NA Form 13055 completed by the Veteran in June 2014. If additional information is needed to submit a request through M05-V, request the specific information from the Veteran, but note VA's duty to submit multiple requests when the reported period of treatment is not unreasonably long. All actions taken to reconstruct the Veteran's service treatment records must be documented. 2. Schedule the Veteran for examinations regarding his claims of entitlement to service connection for tinnitus, appendicitis, and a right jaw condition. For each of the claimed disabilities, the selected examiner must address whether it is at least as likely as not that the disability is the result of an in-service disease or injury. The examiner must be advised that the Veteran is competent to report his symptoms and history, to include the onset of disabilities that are observable through his senses, and such reports must be specifically acknowledged and considered in formulating any opinion provided. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If an opinion cannot be provided without resorting to speculation, the examiner should explain whether the inability to provide the necessary opinion is due to the limits of the examiner's medial knowledge, the limits of medical knowledge in general or there is additional information that, if obtained, would enable the examiner to provide the opinion. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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). 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).