Citation Nr: 1630058 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 11-29 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for bilateral hearing loss. (The issues of service connection for hypertension and a psychiatric disability, to include posttraumatic stress disorder, are addressed in a separate decision.) REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1969 to November 1971, with additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from an October 2010 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the claims file. In a January 2015 decision by the undersigned, the Board denied the instant claim. (Additional matters were remanded for additional development and are the subject of a separate decision, as noted on the preceding page.) The Veteran appealed the adverse portion of the January 2015 Board decision to the Court, resulting in a February 2016 Joint Motion for Partial Remand (JMR) by the parties. A February 2016 Court Order remanded the matter for compliance with the instructions in the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND In the February 2016 JMR, the parties agreed that the Board failed to consider potentially favorable evidence concerning the difference between the noise to which he was exposed during post-active service employment and that to which he was exposed during ACDUTRA service with the Reserves. In subsequent June 2016 correspondence, the Veteran's attorney provided a positive nexus opinion, in which the private audiologist concluded, in essence, that a statistically significant threshold shift in hearing acuity (noted two decades after separation from active service) was "just as likely as not" due to the Veteran's active and ACDUTRA service. The private audiologist did not include a rationale for her conclusion. However, that opinion, in conjunction with the parties' agreement that the impact of noise exposure during ACDUTRA service must be properly considered (to include comparison to noise exposure during postservice employment), indicates that a complete (medical) record is critical to resolution of the matter on appeal. After re-review of the record, the Board finds that additional development is necessary to ensure that the (medical) record is complete. Specifically, on April 2015 VA hypertension examination (conducted after the Board's January 2015 denial), the Veteran reported that he received physical examinations every three years from his postservice employer, The Philadelphia Gas Company. He previously stated that his postservice employer was vigilant with respect to the potential for employee hearing loss. (See hearing transcript, page 6.) Thus, the triennial workplace examinations may include information regarding the onset and any progression of the Veteran's hearing loss and are relevant to determining the etiology of the Veteran's hearing loss. A remand to secure those records is required. The Veteran is advised that a governing regulation, 38 C.F.R. § 3.158, provides that where evidence (including releases for private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim will [emphasis added] be considered abandoned. Accordingly, the case is REMANDED for the following: 1. The AOJ should again ask the Veteran to provide releases for VA to obtain records of his triennial physical examinations from The Philadelphia Gas Company (which may currently be called Philadelphia Gas Works). He must be informed that if he does not submit the authorization forms sought as requested, the claim will be processed under 38 C.F.R. § 3.158 as abandoned. If he provides the releases sought, the AOJ should secure complete records from the postservice employer. If the records are unavailable, the Veteran should be so notified. If he authorizes release of records, but the postservice employer does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received. If he responds but the response is incomplete, the AOJ must advise him that his response was incomplete, and that compliance with all requests is necessary, and afford him opportunity to do so. He should be afforded the full (one year) period of time provided by regulation to respond to the request (unless he indicates that he will not comply with the request, and waives the remainder of the one year period). 2. The AOJ should then review the record and then readjudicate (under 38 C.F.R. § 3.158(a) if applicable) the claim on appeal. If it remains denied (or is dismissed as abandoned), the AOJ should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his attorney opportunity to respond. [If the Veteran does not provide the releases sought, and the AOJ determines that 38 C.F.R. § 3.158(a) does not apply, the SSOC must include the rationale for such determination.] The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ George R. Senyk 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).