Citation Nr: 21073423 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-41 193 DATE: December 8, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an esophagus disorder, claimed as gastroesophageal reflux disease (GERD) or Barrett's esophagus, is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression or anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 8, 1980 to December 10, 1982. Excluding this period of active duty, the Veteran otherwise served in the United States Army Reserves from November 29, 1979 to January 7, 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Upon the Veteran's perfecting of his appeal with a timely returned VA Form 9 that was received on August 22, 2016, the Veteran requested a hearing before a Veterans Law Judge. The hearing was originally scheduled for November 15, 2019, see Correspondence (Sept. 26, 2019), but was then rescheduled for October 29, 2021, see BVA Letter (Sept. 11, 2021). The Veteran did not attend this hearing, and there is no correspondence indicating why good cause exists to excuse his absence from his hearing. The Board determines that his hearing request is withdrawn and the Board accordingly asserts jurisdiction now. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for an anxiety disorder and depression. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder and depression. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for an esophagus disorder. claimed as GERD or Barrett's esophagus, is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. It is not in serious dispute that the Veteran has current diagnoses of the above disorders during the appellate period. See, e.g.: Medical Treatment Records ( June 17, 2015 ; July 15, 2015 ) (rec'd Dec. 12, 2015); VA Exam (Nov. 27, 2015); VA Treatment Record ( July 28, 2016 ) (rec'd Aug. 3, 2016). However, the Board is only in possession of the Veteran's service treatment records from active duty. Even though the Veteran has made no particular argument as to when and/or how the disorders originated, the AOJ appears not to have made any effort in obtaining service treatment records (and any accordant line of duty determinations) from service in the Army Reserves. The Board notes that duty other than active duty is confirmed through the Veteran's other records. See Military Personnel Records ( Nov. 29, 1979 ) (rec'd Aug. 11, 2015); ( Dec. 31, 1985 ) (rec'd Aug. 11, 2015) (confirming January 7, 1986 as the discharge date from the Ready Reserve component). Therefore, a remand is required so that the AOJ may attempt to obtain complete records from the Veteran's Army Reserves service. The matters are REMANDED for the following action: 1. Verify the Veteran's periods and locations of service, to include active duty for training, inactive duty for training, ready reserves, and other reserve duty. Current evidence of record suggests that upon induction to the Army Reserves in November 1979 and upon separation from the Army Reserves in January 1986, the Veteran was domiciled in New Jersey, but no other information about duty other than active duty is available. Once all periods and locations of duty other than active duty have been verified, the AOJ is directed to take reasonable efforts in associating respective records with the Veteran's claims file. If these records cannot be located despite a reasonable search, a notation memorializing a negative response should be provided. 2. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all of the above searches for records have been conducted, the AOJ is directed to undergo all further development that is necessary to adjudicate the Veteran's claims on appeal (to include consideration of whether additional examination or opinion is necessary), and then ultimately readjudicate the Veteran's claims for service connection for hearing loss, tinnitus, an esophageal disorder, and an acquired psychiatric disorder. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.