Citation Nr: 1031237 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-12 344 ) 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 Appellant represented by: Kristina L. Derro, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active duty service from November 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part denied the claim for bilateral hearing loss. The Board notes that the Veteran requested a Board hearing at the Columbia RO, but cancelled the hearing in correspondence dated in February 2006. The hearing request is therefore considered to be withdrawn. In a November 2008 decision, the Board denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a September 2009 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Remand. The Board's decision was vacated and the claim was remanded to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran's audiogram from his October 1967 entrance examination showed hearing within normal limits. He underwent a VA audiological examination in December 2004. The results of this audiological examination similarly did not meet the criteria for a compensable evaluation. 38 C.F.R. § 4.85 (2009). However, the December 2004 examination did indicate a worsening in his hearing from the October 1967 examination. The veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for bilateral hearing loss and that further medical examination and opinion in connection with this claim is warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA audiological examination to determine if he has current bilateral hearing loss, the nature and extent of any current hearing loss, whether any hearing loss constitutes a disability for VA compensation purposes, and to provide an opinion as to the possible relationship of such hearing loss to service. The claims file should be provided to and reviewed by the examiner. The audiological examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss, if existing, is related to any incident of the Veteran's military service, including the rocket attack he has reported. The examiner should provide a rationale for the conclusions reached. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. 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. Thereafter, the case should be returned to the Board for appellate review. 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. 2009). _________________________________________________ WAYNE M. BRAEUER 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) (2009).