Citation Nr: 1237348 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 08-11 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from February 1966 to December 1967. He also had additional active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Army Reserves. This case comes to the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was remanded by the Board in September 2011 so that the Veteran's periods of ACDUTRA and INACDUTRA could be verified and service personnel files obtained and associated with the claims file. While the records were associated with the claims file, the periods of service were not verified. In addition, additional development is now found to be necessary. Therefore, the appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the appellant if further action is required. REMAND As noted in the prior remand by the Board, the Veteran has reported service in the Army Reserves, which has not been verified. In March 2008, the Veteran reported service on the Army Reserves from March 1974 and March 1975. In October 2011, he reported that he was Army Reserves from December 15, 1967 to July 18, 1979. In September 2011, the Board remanded the issue so that the RO could contact all appropriate sources in order to verify the specific dates of the Veteran's ACDUTRA and INACDUTRA service. While additional service personnel records were obtain, the dates of ACDUTRA and INACDUTRA service were not verified and the case must be returned. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Veteran is claiming service connection for bilateral hearing loss, essentially as the result of acoustic trauma he sustained while working in service as an engineer equipment repairman. It is asserted by the Veteran's representative that this military occupational specialty (MOS), while no longer in use, is similar to those that have been deemed by VA to have a high probability of acoustic trauma exposure. Based on the Veteran's MOS and his statements, the Board acknowledges that the Veteran was exposed to high levels of noise during service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). (Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.) The Veteran underwent an audiometric examination in June 2007 at which time an opinion was rendered that the Veteran's hearing loss was the result of service, as audiometric examinations conducted in connection with reserve examinations in 1974 and 1978 were consistent with a hearing loss. This medical opinion was based on the examiner's belief that the 1974 and 1978 audiometric testing was performed while the Veteran was on active duty and not in connection with ACDUTRA or INACDUTRA examinations. In November 2007, an addendum opinion was obtained from the same examiner who opined that the hearing loss was not incurred by military noise exposure. The basis for this opinion was that the Veteran had normal hearing at entry into active duty and "signed a statement to say that there had been no change in his medical condition prior to discharge from active duty," and that hearing loss demonstrated in 1974 did not meet the VA criteria for impaired hearing. See 38 C.F.R. § 3.385 (2011). As pointed out by the Veteran's representative, VA does not require that audiometric findings in service meet the VA criteria for impaired hearing in order for service connection to be established, only that the criteria are currently met. As the testing was performed in June 2007 shows hearing impairment that meets VA criteria, the opinion rendered in November 2007 is based on inaccurate rationale. In addition, evidence submitted since the 2007 opinions were rendered includes a May 1971 audiometric examination that is consistent with a hearing loss. "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Under these circumstances, an additional opinion is necessary in this case. Accordingly, the issue of service connection for bilateral hearing loss is REMANDED for the following action: 1. The RO/AMC should contact all appropriate sources in order to verify the specific dates of the Veteran's ACDUTRA and INACDUTRA service. 2. The RO/AMC should arrange for the Veteran to undergo an audiometric examination to ascertain the current nature and etiology of his bilateral hearing loss. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that the bilateral hearing loss is related to acoustic trauma sustained during service, including during those periods of ACDUTRA and INACDUTRA. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 3. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2011). 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. 2011). _________________________________________________ K. J. ALIBRANDO 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).