Citation Nr: 1802975 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-43 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from May 1956 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The case was previously before the Board in November 2017, at which time, the Board remanded the issues of entitlement to service connection for bilateral hearing loss, tinnitus and a low back disability to the Agency of Original Jurisdiction (AOJ) for additional development, including, VA examinations to determine the etiology of the Veteran's bilateral hearing loss, tinnitus, and low back condition and to obtain relevant service department records. There has not been substantial compliance with the remand directives, with respect to the issues being decided. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets additional delay to the Veteran, another remand is necessary to ensure that due process is followed and that he is afforded every possible consideration. I. Military Records An October 2013 letter informed the Veteran that his military records may have been destroyed in a fire at the National Personnel Records Center (NPRC) in July 1973. The RO requested that that the Veteran complete a NA Form 13055 (Request for Information to Reconstruct Medical Data). In January 2017, the Veteran submitted NA Form 13055, which identified the Veteran's specific unit. The Board's November 2017 remand requested that the AOJ contact the appropriate Federal custodian of records and request a search of the unit history, lessons learned, morning reports, travel orders, travel vouchers, sick reports, unit rosters, or other appropriate records for the Veteran's unit. In November 2017, the AOJ sent a request to the National Archives and Records Administration, Modern Military Records Branch to request any records to provide the unit history, lessons learned, morning reports, travel orders, travel vouchers, sick reports, unit rosters, or other appropriate records for the Veteran's unit. Although the AOJ indicated that the Veteran served in the Army from May 9, 1956 to November 12, 1957, the AOJ did not send the Veteran's specific unit number, which was identified in the January 2017 NA Form 13055. In December 2017, the National Archives at College Park, MD notified the VA that they could not conduct a search without the Veteran's unit information. Further, the National Archives at College Park MD indicated that the morning reports for Army units (from November 1, 1912 to 1959) are in the custody of the National Archives in St. Louis, MO. Therefore, on remand, the AOJ should resubmit a request to the National Archives and Records Administration, Modern Military Records Branch to provide the unit history, lessons learned, morning reports, travel orders, travel vouchers, sick reports, unit rosters, or other appropriate records for the Veteran's unit. The AOJ should provide the National Archives with the Veteran's dates of service as well as the Veteran's unit number. Further, the AOJ should ensure that the requests are sent to the appropriate addresses at the National Archives and Records and Administration, Modern Military Records Branch. II. VA Examinations The Veteran asserts that his bilateral hearing loss and tinnitus are related to service. In a July 2013 VA treatment record the Veteran reported that he was exposed to noise as a tank crew member/driver in the Army in Korea. He reported that he usually wore hearing protection, however, in one instance, he did not have his hearing protection and when the tank fired, he had hearing loss and constant ringing for several days following the incident. Post-service private treatment records reflect a diagnosis of sensorineural hearing loss and complaints of tinnitus from March 2005. The Veteran also asserts that his low back condition is related to service. In a July 2013 VA treatment record, the Veteran reported that he was a tank crew member/driver in the Army in Korea. Post service private treatment records reflect a diagnosis of mild degenerative changes of the spine and sacroiliac (SI) joint from January 2009. The Board's November 2017 remand requested that the AOJ schedule the Veteran for VA examinations to ascertain the current nature and etiology of the Veteran's bilateral hearing loss, tinnitus, and low back disability. The Veteran has not been afforded a VA examination for his claimed disabilities. Therefore, a remand is necessary for the AOJ to schedule a VA examination to determine the nature and etiology of the Veteran's bilateral hearing loss, tinnitus, and low back disability. 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. Contact the National Archives and Records Administration, Modern Military Records Branch and any other appropriate Federal custodian of records and request a search of the unit history, lessons learned, morning reports, travel orders, travel vouchers, sick reports, unit rosters, or other appropriate records for the Veteran's unit. a. Include the Veteran's dates of service as well as the Veteran's unit number, as indicated in the January 2017 NA Form 13055 with the requests. b. Ensure that the requests are sent to the appropriate address. 2. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of the Veteran's claimed bilateral hearing loss. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether the Veteran has a current hearing loss disability for VA purposes (see 38 C.F.R. § 3.385); b. whether it is at least as likely as not (50 percent or greater likelihood) that any current hearing loss disability had its onset in service or is otherwise related to service; The examiner should consider and discuss the Veteran's reported exposure to tank fire without hearing protection. The examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. 3. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of the Veteran's claimed tinnitus disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether the Veteran has a current tinnitus disability; b. whether it is at least as likely as not (50 percent or greater likelihood) that any current tinnitus condition had its onset in service or is otherwise related to service; The examiner should consider and discuss the Veteran's reported exposure to tank fire without hearing protection. The examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. 4. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of the Veteran's claimed low back disability. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether the Veteran has a current low back disability; b. whether it is at least as likely as not (50 percent or greater likelihood) that any current low back disability had its onset in service or is otherwise related to service, including his duties as a tank driver; The examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. 5. Readjudicate the issues on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto. The Veteran 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. §§ 5109B, 7112. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).