Citation Nr: 1609828 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 11-33 157 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for a heart condition. 4. Entitlement to service connection for a chronic back condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to June 1992, and from March 1995 to August 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2010 and August 2010 rating decisions. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO in Winston-Salem, North Carolina, in November 2015. A transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Additional development is needed prior to the adjudication of the claims on appeal. Specifically, the Veteran asserted at the November 2015 hearing that he underwent audiological testing in 2011 or 2012 at the Salisbury VA Medical Center (VAMC) and a VA facility in Winston-Salem, North Carolina. While the claims file contains VA treatment records from the Salisbury VAMC from September 2008 through November 2011 and from the Durham VAMC from April 1999 through March 2008, the claims file contains no record of audiological testing beyond the December 2009 and April 2010 VA examination reports. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to associate all relevant records in VA's possession with the claims file of a Veteran. 38 C.F.R. § 3.159 (2015). Therefore, the bilateral hearing loss and tinnitus issues must be remanded in order to obtain all outstanding VA treatment records which could potentially document diagnoses of hearing loss or tinnitus, in light of the fact that these disabilities were not documented in the VA examination reports. Further, the Board notes that the Veteran indicated in a January 2010 Report of General Information that he was treated at VA facilities in Durham and Charlotte from 1996 to 2009. On his October 2009 claim, the Veteran indicated that he sought treatment at the Salisbury VAMC and the Charlotte VA clinic dating back to 1989. While the claims file contains VA medical records from the Durham VAMC dating back to 1999 and a single handwritten VA treatment record from December 1998, it is not apparent from the record that all available VA treatment records, to include archived records, have been obtained from the Durham VAMC and the Salisbury VAMC, to include the Charlotte Community Based Outpatient Clinic (CBOC). As such, the Board notes that the Veteran's chronic back condition and heart condition claims must be remanded as well in order to obtain all available VA treatment records. With regard specifically to the Veteran's chronic back condition claim, the Board notes that the Veteran underwent a VA examination in December 2009, at which the examiner determined that it is less likely than not that the current back condition is due to the Veteran's short-term back strains during military service. The examiner based this opinion on the rationale that it did not appear that the Veteran had a chronic back condition during service, there is no medical evidence of continuation after discharge until 2009, and the Veteran had a physically demanding post-military occupation. Despite this rationale, the Board notes that the claims file contains a December 1998 VA treatment record noting back problems and a muscle strain. As such, the Board finds that a new VA examination is necessary for the proper assessment of the Veteran's back condition claim. 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain all available treatment records, to include archived treatment records, from the following: a. Salisbury VAMC (and associated clinic) from 1989 to September 2008 and from November 2011 to the present; and b. Durham VAMC (and associated clinics) from 1989 to April 1999 and from March 2008 to the present. 2. After all of the above-requested records have been obtained to the extent possible, schedule the Veteran for a VA examination for his back disability claim. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner is asked to diagnose the Veteran with all current back disabilities. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed back disability began in or was caused by his service. See, e.g., 1998 VA treatment record. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Then, readjudicate the claims. In the event that the claims are not resolved to the satisfaction of the Veteran, he should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. These claims 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 2015). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).