Citation Nr: 0004602 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-46 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to February 1946. In a January 1998 decision, the Board of Veterans' Appeals (Board) remanded the issue of entitlement to service connection for bilateral hearing loss to the Department of Veterans Affairs (VA) St. Louis, Missouri Regional Office (RO) for additional development of the record. The claim has now been returned to the Board for appellate review. REMAND In January 1998, the Board remanded the claim of entitlement to service connection for bilateral hearing loss to the RO and requested, in pertinent part, that VA treatment records from the John Cochran VA Medical Center for the period of 1960 to 1984 be associated from the claims folder. This request was made in light of the veteran's April 1996 statement to the RO that a VA ear, nose and throat specialist had told him that his hearing loss could definitely be traced to service. A review of the claims folder reflects that the RO requested that information from the John Cochran VA Medical Center and received a reply stating that there was no information for that time period. In a March 1999 statement to the RO, the veteran reported that he could not remember the exact dates of his treatment by an ear, nose and throat specialist at John Cochran VA Medical Center, but his first visit was sometime in 1986 or 1987. The veteran also reported receiving a prescription for hearing aids, which he purchased from a private company in 1987. Thus, the veteran has again put VA on notice of the likely existence of competent medical evidence that would, if true, be relevant to and necessary for a full and fair adjudication of the claim. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") reaffirmed in Robinette that 38 U.S.C.A. § 5103(a) (West 1991) imposes an obligation on VA prior to the time when the duty to assist attaches under section 5107(a) (upon the submission of a well grounded claim). Robinette, 8 Vet. App. at 77. The Court found that this duty existed independently from the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The Board recognizes that this case was previously remanded and regrets further delay. However, the veteran has attempted to narrow down the time period of his treatment and has reported obtaining a hearing aid prescription from VA which he took to a private company in 1987. The RO has not requested VA records for that time period. Given that these potential medical records, if they exist, would have been clearly generated by VA, VA has constructive, if not actual, knowledge of those items. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, upon receipt of the statement from the veteran, VA has an obligation under section 5103(a) to assist the veteran by attempting to obtain the potential records in its possession. Robinette, 8 Vet. App. at 77. In light of these circumstances, the case is once again REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, both private and VA, from whom he has received treatment for hearing loss since April 1999. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. The RO should request all records of treatment received by the veteran for hearing loss from the John Cochran VA Medical Center for the time period of 1984 through 1992. 3. If, and only if, the veteran's claim is determined to be well grounded, the RO should schedule the veteran for a VA examination by an appropriate specialist to determine the nature and etiology of his bilateral hearing loss. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The examiner should identify the limitation of activity imposed by the disabling condition, viewed in relation to the medical history, considered from the point of view of the veteran working or seeking work, with a full description of the effects of disability upon his ordinary activity. An opinion should be provided regarding the likelihood that the veteran's current hearing loss had its onset in or is otherwise related to his period of military service. Any opinion expressed should be accompanied by a written rationale. The claims folder and a copy of this remand must be made available to the examiner prior to the examination for review of the medical history. The examination report should reflect whether such a review of the claims folder was made. 4. Thereafter, the RO should undertake any other indicated development and then readjudicate the veteran's claim of entitlement to service connection for bilateral hearing loss. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case with regard to the additional development and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until he receives further notice. The Board notes that the appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. WAYNE M. BRAEUER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).