Citation Nr: 1800624 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-33 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for residuals of a right hand condition. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The record indicates that the Veteran requested that he be afforded a Travel Board Hearing. However, the Veteran failed to appear at the scheduled hearing on December 1, 2017. Review of the record does not indicate that the Veteran did not receive notice of this hearing, and further shows that the Veteran did not alert the Agency of Original Jurisdiction (AOJ) he would not be present and that he did not provide good cause for his absence. Therefore, the Veteran's request for a hearing was deemed to be withdrawn. See 38 C.F.R. § 20.704 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a current right hand condition and bilateral hearing loss related to his service in the Korean War. A July 2013 VA Formal Finding on the Unavailability of Records indicates that the Veterans military records, including service treatment records, were destroyed by fire. The available medical evidence of record indicates that the Veteran has symptoms related to a right hand condition and problems hearing. A July 2012 VA treatment record indicates that the Veteran has numerous conditions related to the fingers on his right hand, and notes that swelling and pain began 15 years prior. The July 2012 VA treatment record also indicates that the Veteran had hearing problems for the past 20 years. However, the record does not provide any information regarding the etiology of either condition and does not indicate that the Veteran was ever provided a hearing test to measure any hearing loss. The Board acknowledges its heightened duty to assist given that the Veteran's service treatment records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Destruction or loss of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran has not been afforded a VA examination to determine the nature and etiology of his residuals of a right hand condition or bilateral hearing loss. McClendon v. Nicholson, 20 Vet. App. 79 (2006), provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The elements of McClendon are met in this case with respect to the Veteran's claims. Although the only evidence indicating that the Veteran's right hand and hearing conditions are related to active duty service are his own general statements, the Board finds that its heightened duty to assist the Veteran in developing his claim under O'Hare necessitates that he be afforded VA examinations to diagnose any current right hand disability and/or bilateral hearing loss. The AOJ should also obtain any outstanding VA treatment records and request that the Veteran provide the details concerning any outstanding private treatment records related to the issue being decided herein. The AOJ should have the Veteran submit the necessary authorizations required to obtain any such records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding post-service VA treatment records. 2. After obtaining any necessary authorizations from the Veteran, obtain and associate with the claims file any relevant, outstanding private treatment records. 3. After associating all outstanding private and VA treatment records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed right hand condition. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50% or greater) that any currently diagnosed condition is related to the Veteran's military service. The claims file should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should inquire during the examination as to any specific injury or incident affecting the Veteran's right hand during active military service. 4. The AOJ should also schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed hearing loss. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50% or greater) that any currently diagnosed condition is related to the Veteran's military service. The claims file should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should inquire during the examination as to any injury or incident regarding hearing loss or acoustic trauma during the Veteran's active military service. If an examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The complete bases for all medical opinions must be provided. 4. The AOJ should then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a SSOC and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action. 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). 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). _________________________________________________ M. H. Hawley 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) (2017).