Citation Nr: 1603761	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  14-19 717A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.  


ATTORNEY FOR THE BOARD

Anthony Flamini, Counsel


INTRODUCTION

The Veteran had active military service from November 1979 to November 1982, with subsequent service in the New York Army National Guard.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus.  Specifically, the Veteran has alleged that he worked with explosives in the military and was informed at his discharge examination that he had hearing loss.  The Veteran's DD Form 214 confirms that he served as a short-range missile crewmember and that he had training in rifle sharpshooting as well as expert training in hand grenades.  

Unfortunately, review of the record indicates that additional development is required prior to adjudication of the Veteran's appeal.

A remand is necessary so that VA may fulfill its duty to assist the Veteran in substantiating his claims.  A review of the record indicates that there is outstanding evidence pertinent to the Veteran's appeal.  The Veteran had verified active duty service in the U. S. Army from November 1979 to November 1982.  The record indicates that the Veteran had additional service in the New York Army National Guard after his period of active service until December 2011.  However, in an October 2012 response to the RO's request for the Veteran's active duty service treatment records, the National Personnel Records Center (NPRC) reported that "THERE ARE NO STRS AT CODE 13 FOR THIS PERSON."  The RO then contacted the New York Army National Guard for the Veteran's records, but only received his Army National Guard records.  Significantly, the RO did not conduct any additional searches for the Veteran's active duty records, and did not issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile.  

As there are relevant additional service treatment records that are outstanding, an attempt must be made to obtain any outstanding records from the Department of the Army and any other appropriate federal records repository.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  38 C.F.R. § 3.159(c)(2) (2015).  

Accordingly, the case is REMANDED for the following action:

1. Contact the Department of the Army, and any other appropriate federal records repository, and request the Veteran's service treatment and personnel records for his period of active duty service from November 1979 to November 1982.

All attempts to obtain this data, and any responses received, should be documented in the claims file.  If it is determined that the Veteran's service treatment records are unavailable or unattainable, then he should be notified in accordance with the procedures set forth in 38 C.F.R. § 3.159(e), of the efforts made to obtain the records and of any additional actions that will be taken with regard to his claims.  The RO must also issue a formal finding of unavailability.  

2.  If any benefit sought remains denied, then issue a supplemental statement of the case.  After the Veteran has been given opportunity to respond, the case should be returned to the Board.

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 2014).



_________________________________________________
U. R. POWELL
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).