Citation Nr: 1804138 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-17 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of an injury of a toe of the right foot. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that these matters were previously final following a November 2005 and December 2009 rating decisions; however, in a November 2015 decision, the Board reopened and remanded these claims from an appealed August 2012 RO rating decision. The requested development has not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2014. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board apologizes for the delay but finds that another remand is necessary to ensure substantial compliance with prior remand orders. See Stegall, 11 Vet. App. 268. The November 2015 Board remand requested that the Veteran be scheduled for VA examinations for his bilateral hearing loss, tinnitus, and residuals of an injury of a toe of the right foot claims. Pursuant to the Board's remand directives, the RO initiated a request for a VA examination in January 2016. Following this request, the RO was informed in January 2016 by the Fort Worth VA Clinic that the Veteran failed to report for the examinations. The Board notes that the RO directed in its January 2016 VA examination request that a courtesy copy of the examination notification letter be sent to the Texas Veterans Commission; however, the Board finds no evidence that this notice was ever sent. Thus, a remand is necessary to reschedule the Veteran for VA examinations and ensure that a copy of the examination notification letter is provided to both the Veteran and his representative. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these files, if possible. Associate these with the claims file. 2. Then, afford the Veteran VA examinations in order to ascertain the nature and etiology of claimed disorders involving hearing loss and tinnitus, as well as residuals of an injury of the toe of the right foot. The Veteran and his representative should be sent copies of the examination notification letter. The Veteran's VA claims folder, a copy of the November 2015 Board remand, and a copy of this remand, should be made available to each VA examiner for use in the study of this case. Those examinations should include a detailed review of the Veteran's medical history, as well as a comprehensive clinical evaluation and any and all indicated diagnostic testing. All pertinent diagnoses should be fully set forth. In addition, request that the VA examiner evaluating the Veteran's hearing loss and tinnitus provide a medical opinion with full supporting rationale as to each of the following: a) If hearing loss for VA purposes is shown, is it at least as likely as not (50 percent or greater probability) that it originated in service or is otherwise attributable to service or any event therein, including in-service acoustic trauma? b) Is it at least as likely as not (50 percent or greater probability) that any sensorineural hearing loss had its onset during the one-year period immediately following the Veteran's discharge from service in June 1993, and, if so, how and to what degree was any such hearing loss manifested? c) Is it at least as likely as not (50 percent or greater probability) that tinnitus of the Veteran originated in service or is otherwise attributable to service or any event therein, including in-service acoustic trauma? d) Is it at least as likely as not (50 percent or greater probability) that tinnitus of the Veteran had its onset during the one-year period immediately following his discharge from service in June 1993, and, if so, how and to what degree was any such tinnitus manifested? The VA examiner is specifically directed to consider fully the Veteran's statements and testimony as to in-service and post-service complaints and observations relating to his hearing loss and tinnitus in responding to the foregoing questions. The VA examiner who evaluates the claimed residuals of a toe injury should be asked to provide medical opinions with full supporting rationales as to each of the following: a) What, if any, residuals of an in-service injury involving a toe of the right foot are currently in existence? Do they entail residuals of a fracture, inability to bend the toe, arthritis, and/or fungal involvement with loss of toenail? b) Is it at least as likely as not (50 percent or greater probability) that any current disability involving a residual of a toe injury of the right foot originated in service or is otherwise attributable to service or any event therein, including in-service trauma? c) Is it at least as likely as not (50 percent or greater probability) that any arthritis of the toe of the right foot had its onset during the one-year period immediately following the Veteran's discharge from service in June 1993, and, if so, how and to what degree was any such arthritis manifested? The VA examiner is specifically directed to consider fully the Veteran's statements and testimony as to in-service and post-service complaints and observations relating to his residuals of an injury of the toe of the right foot in responding to the foregoing questions. 3. Lastly, readjudicate the issues on appeal based on all of the evidence, including that developed since the issuance of the statement of the case. If any benefit sought is not granted, then provide the Veteran with a supplemental statement of the case and afford him a reasonable period to respond before returning the case to the Board for further review. 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 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).