Citation Nr: 1127735	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  07-13 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Evaluation of headaches, currently rated as noncompensable.  

2.  Entitlement to service connection for a bilateral hearing loss disability.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel





INTRODUCTION

The appellant had active service from August 1993 to October 2005.

This matter comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In an April 2009 decision, the Board denied the appellant's claim for service connection for a bilateral hearing loss disability and the claim for a compensable rating for headaches.  The appellant appealed the April 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2011, the Court issued a decision which vacated the Board's April 2009 decision and remanded the issues to the Board for further development.  

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

The appellant appeals the denial of service connection for a bilateral hearing loss disability and a compensable rating for headaches.  The Board denied both claims in an April 2009 decision.  In May 2011, the Court set aside April 2009 Board decision and remanded the matters for further adjudication.  It was determined that the Board relied on inadequate medical examinations for both claims.  

In this case, the appellant was afforded a VA audiological examination in October 2006.  Since that examination, she has related that her hearing loss has worsened.  
Regarding her headaches, she was afforded VA examinations in October 2006 and a July 2007 neurological disorders examination.  She maintains that her headaches have worsened since her last VA examination.

Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.3159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim.  Here, the appellant has reported a worsening of her hearing loss and headaches since her last examination, as such we find that another examination is needed.  In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the appellant for a VA examination to determine the nature and etiology of her claimed bilateral hearing loss disability.  The claims folder should be made available to the examiner for review.  If a bilateral hearing loss disability is found, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present disability is attributable to service.  If there is no relationship between the current disability and service, that fact must be noted in the report.  A discussion of the complete rationale for all opinions expressed should be included in the examination report.

2.  Schedule the appellant for a VA examination to determine the nature and severity of her headaches.  All appropriate diagnostic codes should be addressed.  The claims folder should be made available to the examiner for review.  A discussion of the complete rationale for all opinions expressed should be included in the examination report.


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. 2010).



_________________________________________________
H. N. SCHWARTZ
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) (2010).