Citation Nr: 1802772	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  14-11 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Ford, Associate Counsel


INTRODUCTION

The Veteran served active duty in the United States Army from July 1969 to July 1971.

This appeal arises before the Board of Veterans' Appeals (Board) from an August 2011 rating decision in which the Department of Veteran Affairs (VA) Milwaukee, Wisconsin, Regional Office (RO) denied entitlement to service connection for bilateral hearing loss.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's bilateral hearing loss.

The Veteran contends that his bilateral hearing loss is due to his period of service.  Specifically, the Veteran asserts that, while in service, his duties in antennae construction put him in close proximity to antenna frequency noise, jet planes and helicopters which resulted in his hearing loss.

The Board notes that in the June 1971 separation examination, the Veteran reported that he had been treated at several Army clinics.  The Board also notes that an entrance examination and any other treatment records from the Veteran's period of service are absent from the file.  The only service treatment record associated with the claims file is the separation examination.  VA's duty to assist under the VCAA includes helping claimants to obtain service records and other pertinent records, including private medical records.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  The duty in obtaining records from a Federal department or agency will end only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  38 C.F.R. § 3.159(c)(2) (2017).  Here, having no documentation that such conclusion has been reached regarding the previously mentioned service treatment records, a remand is necessary.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate action to conduct additional search(es) for service treatment records and any in-service hospital records of the Veteran not currently of record.  Follow the procedures set forth in 38 C.F.R. § 3.159 (c) as regards requesting records from Federal facilities.

All attempts to obtain these records should be documented in the claims file.  If the search for these records is negative, such should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e).

2.  After Step 1 has been completed, send the Veteran's file, to include any records resulting from the search, to an appropriate VA examiner.  After review of the claims file, to include the service treatment records and in-service audiological examination(s), VA treatment records, previous VA examination reports, and with consideration of the Veteran and his family's lay statements pertaining to his in-service and post-service noise exposure, in-service symptoms, and symptoms since separation from service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current bilateral hearing loss began in service, was caused by service, or is otherwise related to service, to include the established in-service noise exposure.

In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.  Moreover, the examiner must not rely solely on the absence of hearing loss in service as the basis for a negative opinion.

3.  After any additional development deemed warranted, readjudicate the issue on appeal.  If any benefit sought on appeal remain denied, issue a supplemental statement of the case.  After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board.

The appellant 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. §§ 5109B, 7112 (2012).




_________________________________________________
JENNIFER HWA 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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).


Department of Veterans Affairs