Citation Nr: 1636891	
Decision Date: 09/21/16    Archive Date: 09/27/16

DOCKET NO.  14-23 339	)	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.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

L. Zobrist, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from September 1969 to March 1972.  These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that, inter alia, denied service connection for hearing loss and tinnitus. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board notes that on December 2010 VA psychiatric examination, the Veteran reported combat experience in Long Binh, Vietnam, from December 1969 through December 1970.  If combat experience is established, the Veteran is entitled to consideration under the relaxed evidentiary standards afforded by 38 U.S.C.A. § 1154(b).  The Veteran's DD Form 214 does not indicate that he received any awards that would support a finding that he participated in combat, and it does not appear that his personnel record has been associated with the record.  Remand is required to determine the nature and extent of the Veteran's alleged combat experience.  

Additionally, on December 2010 VA examination, the audiologist determined that an opinion could not be rendered without resort to speculation.  On remand, the Veteran should be offered a new VA audiological examination.

Also, the record reflects that the Veteran served as a police officer for 27 years.  Presumably, he received regular physical examinations during such employment, which may have included audiology examinations; reports of such examinations could support the Veteran's claims and should be sought on remand.  

Finally, records of on-going treatment for the disabilities at issue are clearly pertinent, and may be critical evidence; notably any records of VA treatment not already associated with the record are constructively of record.  On remand, the AOJ must attempt to obtain updated and complete treatment records for all christopher95@example.net.

Accordingly, the case is REMANDED for the following action:

1.  Make a formal finding for the record as to the nature and extent of the Veteran's combat service and which claimed disabilities are entitled to consideration under the relaxed evidentiary standards afforded by 38 U.S.C.A. § 1154(b) (outlining the evidence that supports the determination).  Any records necessary to the decision should be obtained and associated with the record.

2.  Ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for the disabilities at issue and to provide authorizations for VA to secure records of any such private treatment, to specifically include records of examination during his employment as a police officer.  Secure for the record complete clinical records of all pertinent evaluations or treatment (records of which are not already associated with the record) from the providers identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to the request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received.

3.  The AOJ should arrange for a VA audiology examination (with audiometric studies) of the Veteran to determine the nature and likely cause of his current hearing loss and tinnitus.  Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following:

(a)  If combat experience is confirmed (following the development ordered above), it there clear and convincing evidence that the Veteran does not have hearing loss or tinnitus due to any combat experiences during service?

(b)  If combat experience is not confirmed, or the Veteran's hearing loss and tinnitus are not due to combat experiences, is it at least as likely as not (defined as a 50% or greater probability) that the Veteran has hearing loss or tinnitus that are otherwise related to his active service in any way?  

In responding, the examiner should comment on the significance of audiological evaluations at entry to and separation from active service, as well as any the significance of any changes in hearing acuity (as shown by puretone thresholds and word recognition scores) on current and prior postservice audiological examinations.

The examiner must explain the rationale and reasoning for all opinions and conclusions, citing to supporting factual data and medical literature, as appropriate.  (If the requested opinion cannot be provided without resort to speculation, the examiner must explain why that is so and note what, if any, additional evidence would permit such an opinion to be made.)

4.  The AOJ should then review the record and readjudicate the claims.  If any remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).





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