Citation Nr: 1634111 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 15-12 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to September 1952. These matters come to the Board of Veterans' Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in December 2014, a statement of the case was issued in February 2015, and a substantive appeal was received in April 2015. 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 notes that the Veteran has not been provided with notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2015), with regard to his service connection claims. The notices issued in September 2014 only discussed attempts to obtain the Veteran's service treatment records, but was not in compliance with the VCAA. Proper notice must be issued to the Veteran which notifies him of the evidence and information necessary to support his service connection claims, to include what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and what information and evidence is necessary to support a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Along with ensuring proper VCAA notice pertaining to his claim, VA is also instructed to provide proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran asserts that he has had hearing loss and tinnitus since service due to firing rifles and not wearing ear protection, and due to aircraft noise. 12/29/2014 VBMS entry, Notice of Disagreement; 04/14/2015 VBMS entry, Medical Treatment Record-Non-Government Facility. The Veteran's service treatment records are unavailable, as they may have been destroyed in a fire at the National Personnel Records Center (NPRC). 05/29/2014 VBMS entry, VA 21-3101 Request for Information. The Veteran was scheduled for a QTC examination in January 2015. Documentation from QTC reflects that the examination was cancelled because the Veteran was out of town and had previously rescheduled. 01/29/2015 VBMS entry, VA Examination. There is no documentation in the record that the Veteran had previously been scheduled for an examination. The Board finds that being unavailable to attend the examination due to being out of town constitutes good cause for not appearing for the examination. 38 C.F.R. § 3.655. The Veteran should be afforded a VA examination to assess the nature and etiology of his claimed bilateral hearing loss and tinnitus. The Board acknowledges the March 2015 examination and opinion submitted by the Veteran. The Board finds that this opinion, though favorable, does not provide a thorough rationale. As such, the Board finds its probative value is diminished. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a section 5103 letter for service connection in compliance with all notice and assistance requirements set forth in the VCAA and its implementing regulations, to include advising the Veteran of the evidence necessary to substantiate his service connection claims, as well as what evidence he is to provide, what evidence VA will attempt to obtain, and the evidence necessary to support a disability rating and effective date. 2. Schedule the Veteran for a VA audiological examination for the purpose of determining the etiology of his claimed bilateral hearing loss and tinnitus. The claims folder must be made available to the examiner so that they may become familiar with pertinet medical history of Veteran. The examiner shall perform an evaluation for hearing impairment as required by 38 C.F.R. § 4.85, which shall include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should offer opinions as to the following: a) Is it at least as likely as not (a 50 percent or higher degree of probability) that bilateral hearing loss is due to noise exposure in service. Service treatment records are unavailable for review. The Veteran has competently attested that he was exposed to gunfire and aircraft noise during service. The examiner should accept these statements as true for the purposes of this examination. Additionally, the examiner should consider the March 2015 private opinion of record. b) Is it at least as likely as not (a 50 percent or higher degree of probability) that tinnitus is due to noise exposure in service. The examiner must provide a comprehensive rationale for any opinion rendered. 3. Thereafter, the issues should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655. The Veteran and his representative have 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). _________________________________________________ PAUL SORISIO 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. 38 C.F.R. § 20.1100(b) (2015).