Citation Nr: 1237805 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 11-05 487 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to August 1954. This matter to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO denied service connection for hearing loss. In August 2010, the Veteran filed a notice of disagreement. In February 2011, a statement of the case was issued, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In October 2012, the Acting Chairman of the Board granted a motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the record reveals that further RO action in this appeal is warranted. The Veteran maintains that he has hearing loss that can be attributed to acoustic trauma he experienced while serving in combat for 18 months during the Korean War, including exposure to gunfire without hearing protection. The Board concedes that the Veteran's allegations of noise exposure are consistent with the circumstances of his military service, inasmuch as his DD Form 214 reflects that he served in the Republic of Korea, and that he received the Combat Infantry Badge. In April 2010, the Veteran underwent a VA audiology examination at the Atlanta VA Medical Center (VAMC) for purposes of obtaining a medical opinion as to whether bilateral hearing loss was related to his in-service exposure to noise. According to the examination report, the Veteran reported that he has had hearing loss in the right ear since he got out of the service, and that left ear hearing loss became noticeable approximately 15 to 20 years following separation. The examiner did not provide the requested etiology opinion, however, because he found that the results he obtained on audiometric testing were unreliable. Due to the unreliability of the prior audiometric testing results, the Veteran was scheduled for a new VA examination, also at the Atlanta VAMC, in January 2011. He did not report for this examination. A January 2011 report of contact with the Veteran's wife notes that she and the Veteran cannot travel far because of their health. (The record reflects that the Veteran is 84 years old.) On his February 2011 substantive appeal, the Veteran stated that he "can no longer drive to an exam out of town." As an alternative to VA examination and/or testing, the Veteran has submitted multiple private audiology reports, dated in December 2006 and October 2012, in support of his claim. However, the December 2006 report does not contain an etiology opinion, and it thus does not provide a basis for granting the Veteran's claim. The October 2012 examination and testing report was submitted following the return of the Veteran's claim to the Board. It is unclear whether the assertion that the "Veteran requests his file be sent directly to BVA" constitutes a waiver of RO review of this evidence. Even assuming such an intention, however, the October 2012 audiologist's opinion, that "[i]t is likely as not that his hearing loss is due to noise exposure in the service," is insufficient for purposes of deciding this claim, as it is not supported by any stated rationale. Furthermore, the October 2012 audiologist's report contains graphical results of audiometric testing, with no transcription of the results; hence, that portion of the report is of little value. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (the Board may not interpret graphical representations of audiometric data). In addition, neither report notes whether speech recognition scores were obtained though use of the Maryland CNC Test, as required by VA regulations. 38 C.F.R. § 3.385. Under these circumstances, the Board finds that the Veteran should be given another opportunity to undergo a VA examination, with testing, to obtain the testing results and medical opinion needed to resolve the claim. The Board notes that the Veteran lives in Waycross, Georgia, which is approximately 240 miles from Atlanta by car. The Board notes, however, that there are several VA medical facilities that are closer to the Veteran's home. The Carl Vinson VAMC in Dublin, Georgia, is significantly closer to Waycross, while the Charlie Norwood VAMC in Augusta, Georgia, is also closer to Waycross than is the Atlanta VAMC. Several Community Based Outpatient Clinics (CBOCs), including those in Waycross, Valdosta , Brunswick, and St Marys, are also closer to the Veteran's home than is the Atlanta VAMC. Given the Veteran's advanced age, and his apparent willingness to report for an examination that is close to his home, the Board finds that a remand for a new VA examination is warranted. Hence, the RO should arrange for the Veteran to undergo VA examination by an Ear Nose and Throat (ENT) physician or audiologist, with appropriate testing, at the VA medical facility that is closest to the Veteran's home and is capable of conducting such an examination. The Veteran is hereby notified that failure to report to the scheduled examination and/or testing, without good cause, may result in denial of the claim for service connection for bilateral hearing loss (as the original claim will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2012). 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 and/or testing, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the appointment(s) sent to him by the pertinent VA medical facility. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should arrange for the Veteran to undergo VA examination by an ENT physician or audiologist, with appropriate testing, at the VA medical facility that is closest to the Veteran's home in Waycross, Georgia, that is capable of conducting the requested examination and testing. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (specifically, audiometric and speech discrimination testing) should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. With respect to each ear, the examiner should clearly indicate whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes. Then, for each diagnosed disability, the examiner should provide 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 the disability is the result of injury or disease incurred or aggravated in service, to particularly include in-service, combat-related noise exposure. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's in- and post-service noise exposure, as well as the Veteran's assertions. The examiner should set forth all testing results and examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 2. If the Veteran fails to report to the scheduled examination and/or testing, the RO should obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the appointment(s) sent to him by the pertinent VA medical facility. 3. 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). 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the matter on appeal in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeals remain denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case 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 and to accomplish additional development and adjudication; 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 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ 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) (2012).