Citation Nr: 1627304 Decision Date: 07/08/16 Archive Date: 07/14/16 DOCKET NO. 14-32 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1951 to November 1953. This case comes to the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In its decision, the RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus. The Veteran appealed. On April 28, 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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). For the reasons below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In January 2014, the RO received the pending claims for service connection for bilateral hearing loss and tinnitus. The application materials included a completed VA Form 21-526EZ ("Application for Disability Compensation and Related Benefits"). In response, the RO mailed the Veteran a letter dated March 2014. This letter indicates that the Veteran had submitted his claim on a VA Form 21-526EZ that was no longer valid and that, because of this, the RO could not process his application under the fully developed claim (FDC) program. Because he used an invalid form, the letter explained, the RO would process his claim "under our standard processing procedures." When VA received a substantially complete claim, it is required by the Veterans Claims Assistance Act of 2000 (VCAA), to notify the Veteran of all the required elements of his service connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA must be provided to the claimant before the initial unfavorable decision on the merits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, there is nothing in the record to indicate that the RO mailed the required notice to the Veteran. Effective, March 24, 2015, VA amended its adjudication regulations to require all claims to be filed on standard forms provided by the Secretary. 79 Fed. Reg. 57,660 (September 25, 2014). But in January 2014, when the RO received the initial claims in this case, the applicable definition of a "claim" was broader. See 38 C.F.R. § 3.1(p) (2013) (defining "claim" as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit). Under these circumstances, the case must be remanded so that the appropriate notice can be provided to the Veteran. The RO denied the Veteran's claims without first obtaining a medical opinion on the nature and etiology of his claimed hearing loss and tinnitus. In support of his application, the Veteran provided a letter from a close friend, and the letter indicates that the friend knew the Veteran before he joined the Army and that she could tell that the Veteran's hearing "wasn't so good" after he returned from the service. In his hearing testimony, the Veteran reported that he perceived ringing in his ears when practicing on the firing range during active duty. He also said that he did not use earplugs or other hearing protection. The record also includes an audiogram from a private audiologist indicating that, in December 2013, the Veteran's auditory thresholds in decibels met VA's regulatory criteria for hearing loss disability. See 38 C.F.R. § 3.385 (2015). The Veteran's service treatment records were partially destroyed in an accidental fire at the National Personnel Records Center in 1973. In cases where service treatment records are unavailable through no fault of the Veteran, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Under these circumstances, an audiology examination and etiology opinion are needed before the Board can decide the Veteran's claims. . Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran as notice required by 38 U.S.C.A. § 5103 (West 2014). The Veteran should be asked to identify any additional medical treatment he has received for hearing loss and tinnitus. Take appropriate steps to secure copies of any treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records, if any, and copies of his service treatment records, if copies of the original records are available from the Veteran or from other sources. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA audiological examination to determine the nature and etiology of any current hearing loss and tinnitus. The examiner should review all pertinent records associated with the claims file, including service treatment records, post-service medical records, and statements. The examiner should then offer an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any current hearing loss disability or tinnitus is related to any disease, injury or event during the Veteran's active duty service, to include exposure to the noise of rifle fire and heavy kitchen equipment in service. Any opinion provided must include an explanation of the reasons for the opinion. The examiner's explanation should address the Veteran's statements indicating that he perceived ringing in his ears during target practice and that the noise associated with kitchen equipment in service was louder than the noises associated with his post-service employment. 3. The AOJ must ensure that the above opinion is in compliance with the directives of this remand. If it is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After undertaking any other development deemed appropriate, the AOJ will readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ DAVID L. WIGHT 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).