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).