Citation Nr: 0810056 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-38 440A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina ISSUES 1. Entitlement to service connection for hearing loss, right ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel REMAND The veteran had active military service from July 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July and November 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the July 2004 rating decision the RO denied service connection for right ear hearing loss. In the November 2004 rating decision the RO denied service connection for tinnitus. In May 2007 the veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Columbia, South Carolina. The transcript of that hearing is of record. In August 2007 the Board remanded the case for provision to the veteran of a compensation and pension (C&P) examination with regard to his claims for service connection for right ear hearing loss and service connection for tinnitus. Review of the record reveals that the veteran was duly scheduled for an examination to be done on September 25, 2007, at 7:00 p.m. However, the record contains no evidence of notice to the veteran of said appointment prior to October 11, 2007; thus frustrating the purpose of the Board's August 2007 remand. While the supplemental statement of the case reported that the veteran was notified on September 14, 2007, to report for a VA examination only 11 days later on September 25, 2007, the scheduling letter in the claims folder only contains a date of October 11, 2007. The problems with the notification warrant another attempt to schedule the veteran for a VA examination. The Court has held that remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The case must therefore be returned for compliance with the Board's August 2007 remand. Id. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Schedule the veteran for an examination by an appropriate specialist regarding his claims for service connection for right ear hearing loss and tinnitus, and provide sufficient notice of the appointed time to the veteran prior to the scheduled examination. The claims folder must be made available to, and reviewed by, the examiner, and the veteran must be given an opportunity to describe his noise exposure during service. All indicated tests, including audiology testing, should be performed, and all findings reported in detail. The examiner is specifically requested to opine as to whether it is at least as likely as not (50 percent probability or greater) or less likely than not (less than a 50 percent probability) that a right ear hearing loss began during service or is related to any incident thereof. The examiner is also requested to opine as to whether it is at least as likely as not (50 percent probability or greater) or less likely than not (less than a 50 percent probability) that the veteran's tinnitus began during service or is related to any incident thereof. A rationale for all opinions should be set forth in the report provided. 2. Thereafter, the RO should readjudicate the veteran's claims for service connection for right ear hearing loss and tinnitus. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran 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 Supp. 2007). _________________________________________________ S. S. TOTH 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).