Citation Nr: 1804907 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-51 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1963. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 appellant if further action is required. REMAND Remand is necessary to obtain outstanding service treatment records. The Veteran seeks to reopen the previously denied claims for entitlement to service connection for hearing loss and tinnitus, originally denied in a June 2008 rating decision. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). Pertinent regulations governing new and material evidence require VA to reconsider previously denied claims on the merits whenever relevant service records unavailable at the time of the last final rating decision are submitted. 38 C.F.R. § 3.156 (c)(2017); Vigil v. Peake, 22 Vet. App. 63 (2008). If reconsideration is warranted, finality of the prior rating decision is vitiated, and the claim will be addressed de novo. In other words, when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. See Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011); see Vigil at 65 (stating that the regulation "authorizes an effective date [for a reconsidered claim based on newly discovered service department records] as early as the date of the original claim up to the date of the claim to reopen"); see also Cline v. Shinseki, 26 Vet.App. 18, 21-26 (2012) (discussing the regulatory history of § 3.156(c)). In this case, the June 2008 rating decision initially denied service connection for hearing loss and tinnitus. The January 2014 rating decision reopened the Veteran's claims, but continued to deny service connection based on a lack of nexus to service. Regardless, the Board has a jurisdictional responsibility to consider whether it was proper for the claims to be reopened, regardless of what the RO has determined. See Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). However, prior to addressing the claims to reopen, the Board must ensure that it has a complete record upon which to render a decision. Notably, although the RO, in its June 2008 and January 2014 rating decisions, listed the Veteran's service treatment records from September 15, 1959, to September 16, 1963, as having been reviewed, these records are not in the claims file. Instead, the only service records contained in the claims file are dated from September 1964 to 1965, and importantly, these records were in connection with the Veteran's application into the PLC program (Platoon Leaders Course) and not with his active duty service in the Navy from 1959 to 1963. Specifically, there is no service entrance or service separation examination report for the Veteran's period of active duty service. There are also no treatment records corresponding to the Veteran's period of active duty service. As such, the AOJ should attempt to obtain any outstanding service treatment records for the Veteran's period of active duty service. As these federal records in service department custody are potentially relevant to the issues on appeal, such records are necessary prior to addressing the issues currently on appeal. 38 C.F.R. § 3.156 (c). (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following actions: (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 all service treatment records for the Veteran's period of active duty service from September 1959 to September 1963 and associate them with the claims file. (NOTE: service treatment records currently in the claims file are not for the period of the Veteran's active service). 2. After undertaking any additional development deemed appropriate, readjudicate the issues of whether new and material evidence has been received to reopen service connection for hearing loss and tinnitus, to include a determination as to whether reconsideration is warranted under 38 C.F.R. § 3.156 (c). If any aspect of the appeal remains denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. 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 (2012). _________________________________________________ S. B. MAYS 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).