Citation Nr: 0809912 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-39 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from April 1967 to March 1969. He is the recipient of the Combat Infantryman Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In connection with this appeal, the veteran testified at a personal hearing before the undersigned Veteran's Law Judge, sitting at the RO in May 2007; a transcript of the hearing is associated with the claims file. The Board observes that the veteran had appealed the issue of entitlement to service connection for tinnitus, which was also denied in the August 2005 rating decision. However, after receipt of additional evidence, service connection was granted by the RO in a February 2006 rating decision. Therefore, as the February 2006 decision was a full grant of the benefit on appeal with regard to tinnitus, that issue is not before the Board. In September 2007, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. This appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A remand is necessary in order to ensure compliance with the Board's September 2007 remand orders. Specifically, in the September 2007 remand, the Board determined that neither the June 2005 nor January 2006 VA opinion provided a sufficient basis on which the Board could reach a conclusion with regard to the etiology of the veteran's bilateral hearing loss. Accordingly, the Board remanded the claim in order to obtain another VA opinion. Specifically, the Board noted that the January 2006 VA examiner opined that the veteran's hearing loss is not as likely as not caused by acoustic trauma in the military, but also attributed the hearing loss to the same etiology as his service-connected tinnitus and to the tinnitus itself. Thus, the Board requested another VA examination and that the examiner specifically address whether the veteran's bilateral hearing loss is directly related to his military service and, if not, whether it was incurred or aggravated by his service-connected tinnitus. The veteran reported for another VA examination in October 2007. Unfortunately, the Board observes that the October 2007 VA examiner reported that her opinion was the veteran's bilateral hearing loss was not caused by or a result of his military service, but she did not respond to the question of whether the bilateral hearing loss is a result of incurrence or aggravation by the service-connected tinnitus. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, another remand is necessary in order to obtain another VA opinion that complies with the Board's September 2007 orders Accordingly, the case is REMANDED for the following action: 1. A VA opinion should be requested from the examiner who performed the October 2007 VA examination or another audiologist if she is not available. The veteran's claims file, including a copy of this remand, should be forwarded to the examiner for review, and the report should reflect that such review occurred. In the report, the examiner should address the following question: Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the veteran's bilateral hearing loss is proximately due to or been chronically worsened by his service-connected tinnitus? The term "as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. A rationale for any opinion advanced should be provided. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the veteran's claim should be readjudicated. The veteran and his representative should then be provided with another supplemental statement of the case. An appropriate period of time should be allowed 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).