Citation Nr: 0812838 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-23 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from October 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran was scheduled for a personal hearing before the Board in May 2007, however he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2007). Accordingly, this veteran's request for a hearing is considered withdrawn. Due to the advanced age of the veteran, it is noted that the veteran or his representative may file a motion to advance this case on the Board's docket. See 20.900 (c) (2007) (motion must be in writing and identify the reason why advancement is sought, the name of the veteran, and the VA file number, and must be filed with the Board). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This case was previously before the Board in October 2007 and was remanded for the RO to conduct a VA Compensation and Pension (C&P) examination to determine the etiology of the veteran's bilateral hearing loss and tinnitus. The remand requested that the examiner render an opinion regarding whether the veteran's bilateral hearing loss and/or tinnitus were related to his report of medication taken in service to treat malaria. In December 2007, the veteran was afforded a VA C&P audiological examination. The examiner did not render an opinion on whether the veteran's bilateral hearing loss and/or tinnitus were related to his report of medication taken in service to treat malaria. The examiner indicated that "[d]etails about which medication the [patient] took for malaria during the military service was not readily found in the C-file." The Board notes that service medical records (SMRs) dated in March 1946 reveal that the veteran was treated for malaria while in service with Atabrine, Codeine, and aspirin. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the veteran's claim must be remanded for an opinion to be rendered regarding whether the veteran's bilateral hearing loss and/or tinnitus are related to the medications that the veteran took for malaria during military service. In addition, the December 2007 VA C&P audiological examination report contained inconsistent findings and conclusions regarding whether the veteran's bilateral hearing loss and tinnitus were related to or had their onset during service, and particularly, to his report of in-service acoustic trauma. The examiner provided an opinion that it was less likely as not that hearing loss and tinnitus were caused by or resulted from military noise exposure. The examiner then stated that it is possible that the veteran could have had high-frequency hearing loss due to unprotected military noise exposure. In addition, the examiner stated that determining the amount of hearing loss and tinnitus caused by each of these types of noise exposure (military, occupational, and recreational) would be speculative at best, which does not support the conclusion that hearing loss and tinnitus are less likely than not related to service. The examiner also stated that some medications cause hearing loss and/or tinnitus, however, this opinion would best be left for the ear-nose-throat physician. In light of the inconsistencies and the examiner's recommendation that an ear-nose-throat physician provide an opinion, the Board finds the examination inadequate for rating purposes. Thus, the Board must remand this claim for another VA C&P examination. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Arrange for a medical opinion to be provided by an ear-nose-throat physician. The claims folder should be made available to and reviewed by the physician. The physician should provide an opinion as to whether it is less likely than not (less than a 50 percent probability), at least as likely as not (a 50 percent or greater probability), or more likely than not (greater than 50 percent probability) that the veteran's hearing loss and tinnitus are related to service, and particularly, to his report of in-service acoustic trauma and the medication (Atabrine, Codeine and aspirin) that was taken in service for malaria. The rationale for all opinions expressed should be provided in a report. If the physician determines that a physical examination is necessary in order to provide the requested opinion, such examination should be scheduled. 2. Thereafter, adjudicate the veteran's claim. If the benefit sought on appeal is not granted, the RO should issue the veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. 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). _________________________________________________ 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).