Citation Nr: 1806677 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-39 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a dental trauma. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1958 to November 1960. He also had subsequent service in the Reserves through October 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which determined that new and material evidence had not been received to reopen a claim for service connection for residuals of a dental trauma and denied entitlement to service connection for bilateral hearing loss and tinnitus. In July 2015, a Board hearing was held at the RO before the undersigned and the transcript is of record. In October 2015, the Board determined that new and material evidence had been received to reopen the claim for service connection for residuals of a dental trauma and remanded the claims for further development. The Board notes that the Veteran also appealed the issue of service connection for residuals of a left ankle injury. In October 2016, during the pendency of appeal, the RO granted service connection for this disability. Because the Veteran was awarded service connection, this issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran also initiated an appeal of a September 2016 rating decision that continued a noncompensable (zero percent) rating for status post partial dislocation of the proximal interphalangeal joint of the left 5th finger with ulnar deviation and degenerative joint disease of that finger (claimed as left pinky finger injury). A Statement of the Case (SOC) was issued in October 2017, and the Veteran did not perfect an appeal of the issue by filing a substantive appeal (VA Form 9). As such, this claim is not before the Board. 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 Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In October 2015, the Board remanded the claims for further development. The AOJ was instructed to make attempts to associate dental treatment records from Vandenberg Air Force Base, and to obtain a medical opinion on whether the Veteran's active duty for training (ACDUTRA) Reserve service caused any current hearing loss and/or tinnitus. The Veteran was subsequently sent a letter in May 2016 indicating that he should provide information on any facility he may have been seen at for the claimed dental trauma, and no response to the letter has been received. However, "Vandenberg Air Force Base" was not expressly stated in the letter. Additionally, the Veteran noted in December 2017 that additional records for his hearing and his teeth were available at the Santa Maria VA outpatient clinic. The Veteran attached a medical release for this clinic and also attached a November 2016 letter indicating that MSLA, a medical corporation contracted by VA had arranged for him to attend a C&P disability evaluation with Zen Dental Group in November 2016. There are no C & P dental examination reports from November 2016, nor is there an indication that the Veteran failed to report for the examination or rescheduled it. In short, it is unclear whether this examination took place. On remand, clarification should be obtained and if the examination took place all reports of the examination should be associated with the claims file. In addition, a medical opinion was obtained in May 2016 on the etiology of the Veteran's hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not related to his active service between 1958 and 1960, and indicated that evidence supported that the acoustic trauma occurred after 1977. However, the examiner did not opine on whether any ACDUTRA noise exposure caused the Veteran's hearing loss. Furthermore, no opinion was provided on the etiology of the Veteran's tinnitus. The Board therefore finds that there was not substantial compliance with the remand directives and another remand is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). 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 Veteran and request that he provide sufficient information, and if necessary authorization to enable the AOJ to obtain any non-VA treatment records showing treatment of the claimed dental trauma, to specifically include a request for authorization to obtain records from Vandenberg Air Force Base. The AOJ should attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Obtain updated VA treatment records from the Santa Maria VA outpatient clinic. 3. Clarify whether the November 2016 C&P dental examination scheduled by MSLA at Zen Dental Group took place. If the examination occurred, associate all records and opinions with the claims file. 4. Contact the VA examiner who provided the May 2016 medical opinion (or a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. The examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed bilateral hearing loss and/or tinnitus were caused by the Veteran's ACDUTRA noise exposure. In providing this opinion, the examiner is requested to address the findings of a December 1982 service examination that notes bilateral hearing loss, as well as any threshold shifts noted during the Veteran's Reserve service through October 1983. A thorough and detailed explanation of the cause or causes of any diagnosed sensorineural hearing loss and tinnitus, and why one choice is made over another, should be provided. The examiner should consider and discuss ACDUTRA and post-service noise exposure, and the Veteran's lay assertions regarding his hearing loss disability. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the RO/AMC should schedule the Veteran for such an examination. The VA claims folder must be made available to the examiner for review in connection with the opinion addendum. The examiner should provide a rationale for all conclusions. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 5. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. 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). _________________________________________________ H. SEESEL 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).