Citation Nr: 1614411 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 11-03 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 3. Entitlement to service connection for chronic laryngitis/laryngopharyngeal reflux, claimed as sinus problems as due to an undiagnosed illness and/or environmental hazards related to service in the Southwest Asia Theater of operations. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for degenerative joint disease of the elbows and knees, claimed as joint and muscle pain as due to an undiagnosed illness and/or environmental hazards related to service in the Southwest Asia Theater of operations. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active military service from October 1984 to March 1984, from October 2001 to January 2003 and from January 2003 to November 2003. He also served with the Army Reserve, to include periods of active duty for training (ADT) and inactive duty for training (IDT). This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before a VA Decision Review Officer (DRO) at an October 2011 hearing. A transcript of the hearing is of record. A March 2015 Board decision reopened the claim for entitlement to service connection for hearing loss, granted a claim of entitlement to service connection for a lumbar spine disability and denied a claim of entitlement to service connection for laryngitis and remanded the remaining claims considered herein. The denial of service connection for laryngitis was appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2015 Order, the Court granted a Joint Motion for Remand and remanded the matter to the Board for action consistent with the motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Initially, the Board observes that the January 2016 supplemental statement of the case was returned as undeliverable. On remand, the AOJ should ascertain his current address and the document should be mailed again to the Veteran. In May 2013, the Veteran provided a letter dated February 2013 indicating that he had separated from the Reserve due to physical disabilities and that there had been a Physical Evaluation Board. The Veteran's Reserve records as well as the Physical Evaluation Board records must be associated on remand. As noted by the joint motion for remand, there is no medical opinion concerning the Veteran's claimed chronic laryngitis/laryngopharyngeal reflux. The Veteran should be afforded a VA examination to determine whether his chronic laryngitis is related to active service or any incident of service, to include exposure to dust and sand while deployed and with consideration of the Gulf War presumptions. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an additional copy of the January 2016 supplemental statement of the case. 2. Obtain the Veteran's service personnel and service treatment records from his Reserve unit to include records concerning his Physical Evaluation Board in 2012. 3. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing medical records from the Jackson VAMC. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any chronic laryngitis/laryngopharyngeal reflux. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. The examiner should indicate whether it is as likely as not that chronic laryngitis/laryngopharyngeal reflux (found on examination or exhibited during the course of the claim (from September 2008)) is related to service to include consideration of the Gulf War presumptions and exposure to dust and sand. The absence of evidence of treatment for the claimed condition in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. A rationale must be provided. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports, including those of a history of disabilities in the years since his discharge from service, must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 5. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. 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). These claims 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). _________________________________________________ THOMAS J. DANNAHER 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).