Citation Nr: 1300742 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-08 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to October 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the above claim. The Veteran filed a notice of disagreement (NOD) with this determination in July 2007, and timely perfected his appeal in March 2008. During the pendency of the appeal, the Veteran's claims file was transferred to the Philadelphia, Pennsylvania RO. In March 2011 and August 2011 the Board remanded the issue on appeal for further examination. The Board finds the August 2011 remand instructions were not in substantial compliance and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Further development is warranted as certain actions requested in the August 2011 Board remand have not been performed in full. Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Pursuant to the Board's August 2011 remand instructions, the AMC was requested to schedule the Veteran for a VA examination for bilateral hearing loss, and a copy of the notification of the date and place of the requested examination was to be associated with the claims file. The Veteran was afforded a VA examination in August 2011. The examiner felt that the results of the examination were unreliable, and should not be used for rating purposes. It was recommended that the Veteran return for an audiological reevaluation. The file contains a December 2011 letter to the Veteran informing him that the AMC received the August 2011 examination report, and that the examiner requested additional medical evidence in order to provide a thorough decision. The Philadelphia VA medical facility was asked to re-schedule the Veteran for an examination. The record contains multiple compensation and pension exam inquiries showing multiple subsequent examinations scheduled, however, the RO noted that the Veteran failed to report to the scheduled VA examinations. Notably, however, it is unclear from the evidence of record whether the Veteran received notification that he had been scheduled for these examinations. While the November 2012 Supplemental Statement of the Case noted that the AMC received evidence on November 19, 2012 from the Philadelphia VAMC that the Veteran was notified in writing of the VA examinations, it does not appear that the RO and/or AMC associated any of these notification letters with the Veteran's claims file as directed in the August 2011 remand instructions. Accordingly, the Veteran will be afforded another opportunity to undergo a VA examination in relation to his service connection claim for bilateral hearing loss, and the notification letter of the time and place of the VA examination sent to the Veteran should be associated with the claims file. See Stegall. However, on remand, the Veteran should be notified that it is his responsibility to report for any scheduled examination based on notice sent to his last address of record, and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. In this regard, the Board highlights that, although efforts will be made to schedule the Veteran for VA examinations in relation to his claim, the burden is on the Veteran to apprise VA of his whereabouts, and if he does not do so, there is no burden on the part of VA "to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions. Lastly, the Board notes that a remand is necessary to obtain any outstanding VA treatment records. The record reflects that the Veteran underwent audiometric testing. Specifically, a September 2011 audiology note stated that C&P dictated results of the assessment can be found in Audiogram Display under the "tool" menu tab. However, these assessment results have not been associated with the claims file. Additionally, the August 2011 VA examination report failed to document the audiometric testing results. Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when reviewing the auditory thresholds or speech recognition scores using the Maryland CNC Test obtained during audiometric testing. As these audiometric testing results may contain information pertinent to his claim, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED for the following action: 1) The Veteran must be given adequate notice to his current address of record of the date and place of any scheduled VA examination for bilateral hearing loss. A copy of any notification letters sent to the Veteran must be associated with the claims file. Additionally, inform the Veteran that pursuant to 38 C.F.R. § 3.655, failure to report for an examination in conjunction with an original compensation claim may result in a denial on the merits insofar as the claim will be decided on the evidence of record. Although efforts will be made to schedule the Veteran for VA examinations in relation to his claim, the burden is on the Veteran to apprise VA of his whereabouts, and if he does not do so, there is no burden on the part of VA "to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). 2) The AMC should obtain any available outstanding VA treatment records pertaining to the Veteran's bilateral hearing loss. Specifically, the Board is interested in all audiometric testing results referenced in VA treatment records and the August 2011 VA examination report. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 3) Additionally, the AMC should schedule the Veteran for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this REMAND in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. All necessary test should be performed, to include audiometric testing, and associated with the claims file. The examiner should state whether the Veteran currently has hearing loss pursuant to VA regulations. Additionally, the examiner should determine whether the Veteran had a hearing loss disability pursuant to VA regulations on entrance into service in June 1974. If so, the examiner should provide an opinion as to whether the evidence of record demonstrates that the Veteran's preexisting hearing loss was permanently aggravated (increased in severity) during service, and if so, whether such worsening constituted either the natural progression of the disorder, OR whether such worsening constituted chronic aggravation due to service. The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Further, the VA examiner should state whether it is at least as likely as not that the Veteran's bilateral hearing loss (if diagnosed) had its onset in service or is related to any in-service disease, event, or injury. Specifically, the VA examiner should address the Veteran's duties in-service and any possible noise exposure post-service. Additionally, the examiner should review and discuss the Veteran's service treatment records and any other relevant information. Furthermore, the examiner should also discuss the Veteran's lay statements, to include incidents of in-service noise exposure and chronicity of symptomatology, when discussing the offered opinion. The reviewer must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. If the claim is denied, the AMC should then provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ 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) (2012).