Citation Nr: 18158604 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-04 571 DATE: December 17, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REFERRED ISSUE The appellant has not submitted a claim for entitlement to service connection for tinnitus. However, during a VA examination in March 2015, the appellant reported constant and bilateral tinnitus since 1974. As a claim for entitlement to service connection for bilateral hearing loss does not encompass a claim for tinnitus, such matter is referred to the RO for appropriate action. In this regard, the appellant should be provided with notice of the requirements to establish a claim for service connection for tinnitus, and an opportunity to formally submit such a claim. 38 U.S.C. § 5103; 38 C.F.R. § 3.155. REASONS FOR REMAND The appellant had active duty for training (ACDUTRA) from June 7, 1974 to July 16, 1974, with additional service in the Army National Guard of Missouri between February and July of 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board finds that VA has not fulfilled its duty to assist the appellant in procuring relevant service personnel and treatment records, and further development is required. 38 U.S.C. § 5103A (c), 38 C.F.R. § 3.159 (c)(1). The appellant’s military personnel records show that he enlisted in the Army National Guard of Missouri in February 1974. His enlistment medical examination contains typed audiometric testing results superimposed over partially obscure, handwritten testing notes reflecting higher values of hearing impairment at certain frequencies. The examiner initially wrote “hearing loss” under the summary of defects and diagnoses, but crossed out that notation, and wrote “hearing rechecked and checked alright.” The appellant’s report of medical history documented a history of hearing loss, and the examiner noted that the appellant “has had trouble hearing since high school.” The appellant reported for ACDUTRA on June 7, 1974. On June 10, 1974, medical treatment records reflect that the appellant was seen for hearing loss in both ears. The physician requested a referral to otology for a determination on individual fitness, and whether the disability existed prior to service. However, there are no further records of audiological treatment, a separation examination, or fitness eligibility determinations in the appellant’s service records. The appellant was discharged from the Missouri Army National Guard effective July 16, 1974, for “failure to meet enlistment medical standards at time of enlistment…”, without further elaboration or explanation. The RO requested records from the Missouri National Guard, and received a response indicating that the appellant’s records were not at that location. A VA Form 21-0820, Report of General Information (dated October 29, 2014), reflects that VA contacted the appellant to ask if he possessed his original records. Though the appellant reported that he had misplaced his original records, he noted that he had obtained copies of records from the “Missouri archive,” which he had previously faxed to VA. Soon thereafter, VA contacted the Missouri Adjutant General’s Office, which stated that it could not confirm records at that time because its system was offline. VA sent a letter thereto requesting, among other things, a complete copy of all military service and medical records. In November 2014, the Adjutant General’s Office replied that it did not have such records. Nevertheless, the Board notes that the appellant successfully procured records from an entity referred to as the “Missouri archive,” despite VA’s unsuccessful requests for records from the Missouri National Guard and the Adjutant General of Missouri. Accordingly, the RO should contact the appellant to clarify the identity, location, and address of the “Missouri archive”, and request all available records from that entity. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(1). If additional records cannot be found, then the RO must issue a formal finding of unavailability for missing service records relating to all determinations of fitness or disability preexistence, separation examinations, and discharge from service. The Board also notes that the appellant’s representative argued, in part, that the appellant should be granted entitlement to service connection for bilateral hearing loss because he was discharged from service due to his hearing condition, and that he should be presumed to be in sound condition under 38 U.S.C. § 1111, based on the audiological testing results reflected on his military entrance examination. As a matter of law, without previously established “veteran” status, the presumption of sound condition is inapplicable. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The term “veteran” includes members who served: (1) on active duty, (2) in any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) in any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The appellant does not have previously established “veteran” status, so the presumption of soundness does not apply to the claim on appeal. See Smith, 24 Vet. App. at 45. However, as the record is incomplete as to whether the appellant’s disability preexisted his period of ACDUTRA, or was aggravated therein, the Board will wait to decide such matters, pending further development. Additionally, the appellant was provided with VA examinations for his hearing disability, in March 2015 and December 2016, but neither VA examiner believed that they could opine as to the etiology of the appellant’s hearing loss without resorting to speculation. The December 2016 VA examiner opined that the appellant’s hearing loss in the right ear preexisted service and was not aggravated beyond its normal progression by military service. However, such opinion obviously does not reflect consideration of the missing medical records. On remand, an addendum medical opinion should be procured if additional service medical records are located and associated with the claims file. The matter is REMANDED for the following action: 1. Contact the appellant and ask him to clarify the location, identity, and address of the place where he procured copies of his service treatment/personnel records, to specifically include the location referred to as the “Missouri archive” in the VA 21-0890 (dated October 29, 2014), and invite him to submit any additional service treatment/personnel records that he may have located or obtained. Thereafter, request the appellant’s service treatment and personnel records from the identified custodian, to include records of audiological treatment, a separation examination, and fitness eligibility or disability preexistence determinations. Make two requests unless it is clear from the first request that a second request would be futile. If the records cannot be located, issue a formal finding of unavailability reflecting the same. 2. If additional service treatment/personnel records are located, obtain an addendum medical opinion from any qualified VA examiner as to the etiology of the appellant’s hearing loss. The examiner is asked to opine, and provide a complete rationale, on the following: a) Is it at least as likely as not (50 percent probability or greater) that the appellant’s hearing loss had its onset during or is etiologically related to active service? b) Is it at least as likely as not (50 percent probability or greater) that the appellant’s hearing loss preexisted service, and if so, is it at least as likely as not that it was aggravated beyond its natural progression therein? Rationale must be provided for the opinions proffered. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, furnish the appellant and his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel