Citation Nr: 0813010 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-13 242 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Donovan, Associate Counsel INTRODUCTION The veteran served on active duty from May 1963 to April 1965. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2003 rating decision in which the RO reopened and denied the veteran's claims for service connection for hearing loss and tinnitus. In October 2003, the veteran's representative filed a notice of disagreement (NOD), on behalf of the veteran. A statement of the case (SOC) was issued in February 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in the same month. In June 2004, the veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is of record. The RO issued a supplemental SOC (SSOC) in June 2004. Thereafter, the RO continued the denial of the claims for entitlement to service connection for bilateral hearing loss and tinnitus (as reflected in a September 2004 SSOC). In August 2006, the veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2007, the Board reopened the veteran's claims for service connection for bilateral hearing loss and tinnitus, but remanded the claims for service connection, on the merits, to the RO (via the Appeals Management Center (AMC) in Washington, DC). After accomplishing further action, the AMC continued the denial of each claim (as reflected in a November 2007 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Review of the claims file reveals that the directives of the January 2007 remand were not followed; hence, further remand of these matters is warranted, even though such will, regrettably, further delay an appellate decision on the claims. In the January 2007 remand, the Board sought to obtain a medical opinion, by an appropriate physician, that would provide a basis for a decision on these claims, consistent with the general requirements of due process and fairness toward the veteran in light of the law as it relates to the claims for service connection for bilateral hearing loss and tinnitus. Unfortunately, the requested opinion was not obtained. As previously pointed out in the January 2007 remand, post- service VA and private treatment records reveal that the veteran received treatment for bilateral hearing loss and for tinnitus. In a March 2004 report, a VA examiner noted that he was unable to obtain consistent pure tone threshold levels and opined that it is not at least as likely as not that whatever hearing loss and accompanying tinnitus the veteran currently has, are related to his period of active service. However, in a July 2006 statement, a private audiologist noted that the veteran suffered from bilateral hearing loss and tinnitus, discussed the veteran's claimed in-service noise exposure, and opined that it is well-documented that firearm use can and does cause the type of hearing problems that the veteran is experiencing. As such, and given the veteran's documented military occupational specialty (MOS) as a Infantry Indirect Fire Crewman and noted citations for artillery and rifle courses in service, the likely associated noise exposure, and the conflicting, insufficient medical and audiologist opinions as to etiology, the Board found that a new VA examination was needed to resolve the claims on appeal. In an effort to secure a competent, probative medical opinion sufficient to decide the claims, the Board sought to have an otolaryngologist (ear, nose, and throat specialist) examine the veteran, conduct all appropriate tests and studies (to include audiometry, and speech discrimination testing, for each ear), and provide an opinion regarding the relationship between any current hearing loss or tinnitus and service, to specifically include likely noise exposure, in light of the medical evidence in the claims file. Unfortunately, the Board's January 2007 directives were not followed. The veteran was afforded a VA audiology "examination" in September 2007, by an audiologist, a non- physician, rather than a physician, as the Board specifically requested in the January 2007 remand. Further, the audiologist's findings do not provide a sufficient basis upon which to decide either claim. The audiologist indicated that pure tone threshold and speech discrimination testing could not be accomplished as the veteran either would not or could not respond to pure tone or speech stimuli consistently. As such, the audiologist indicated that she could not make a statement regarding his hearing sensitivity or determine etiology of tinnitus. Under these circumstances, and because, as previously indicated, a medical opinion by an appropriate physician is needed to resolve these claims, the RO should arrange for the veteran to undergo VA examination, by an otolaryngologist (ear, nose, and throat physician ), at a VA medical facility. The physician should conduct all necessary testing and render a medical opinion-based on full consideration of the veteran's documented medical history and assertions-that addresses the existence of current bilateral hearing loss disability and tinnitus, and the relationship, if any, between each such disability and in-service noise exposure. If the physician is unable to conduct the necessary testing, he or she should specifically indicate whether the veteran would not or could not provide the necessary responses. If the veteran can not provide the necessary responses, the physician should indicate the reason why such responses could not be provided. The veteran is hereby advised that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claims. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should notify the veteran of what is needed to support the claims for service connection. The RO should also invite the veteran to submit all pertinent evidence in his possession (not previously requested). After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent the claims on appeal that is not currently of record. The RO should invite the veteran to submit all pertinent evidence in his possession, and notify the veteran of the type of evidence that is the veteran's ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify him and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the veteran to undergo examination by an otolaryngologist (ear, nose and throat physician) at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the report of the examination should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies (to include audiometry, and speech discrimination testing, for each ear) should be accomplished and all clinical findings should be reported in detail. Based on the results of audiometric testing, the physician should specifically indicate, which respect to each ear, whether the veteran currently has hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent). The examiner should also indicate whether the veteran currently suffers from tinnitus. If the veteran does not provide the necessary responses in order to complete the appropriate tests or studies, the physician should clearly indicate whether the veteran will not or cannot provide the responses. If the veteran cannot provide the responses, the physician should indicate the reason why such responses could not be provided. Then, with respect to each diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability is the result of injury or disease incurred or aggravated in service, to specifically include likely noise exposure during the veteran's service. The physician should set forth all examination findings, along with a complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for service connection. If the veteran fails, without good cause, to report to the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate each claim, on the merits, in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).