Citation Nr: 1301435	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-46 604	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Ann L. Kreske, Counsel


INTRODUCTION

The Veteran had active service from October 1961 to October 1964. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). 

In April 2011, the Board denied the claim for entitlement to service connection for bilateral hearing loss.  The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court).  In an August 2012 Memorandum Decision,  the Court vacated the Board's denial of service connection for bilateral hearing loss and remanded the claim for the directed action.  The case has now returned 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

In its August 2012 Memorandum Decision, the Court stated that the Board relied on an inadequate VA medical opinion in its April 2011 denial of the claim.  The Court noted that, in rendering a negative nexus opinion with regard to the Veteran's bilateral hearing loss, a September 2009 VA examiner provided a rationale that was based on an inaccurate reading of a study by the Institute of Medicine.  This rendered the opinion inadequate, and that the Board erred in relying on this opinion in its denial.  Because the September 2009 VA examination is the only medical evidence of record regarding the medical nexus question, the Court vacated the Board's decision and remanded it for a new audiological opinion.   

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be scheduled for a VA audiological examination to ascertain the nature and etiology of his bilateral hearing loss.  The claims file should be provided to the examiner.  The examiner should offer an opinion as to whether it is at least as likely as not that any current bilateral hearing loss had its onset in service.  In rendering this opinion, the examiner should note that the exposure to in-service acoustic trauma has been conceded, and that the VA nexus opinion of the September 2009 VA examiner has been deemed inadequate, based on the examiner's manner of paraphrasing a finding from the Institute of Medicine study set out in National Research Council, Noise and Military Service: Implications for Hearing Loss and Tinnitus 47 (The National Academies Press 2006), available at http://www. nap.edu/catalog.php?record-=11443, when visited by the Court July 30, 2012).  A complete rationale for any opinion expressed should be provided.  If the examiner determines that a medically sound opinion cannot be reached, it is requested that an explanation as to why that is so be included.

2.  Thereafter, the claim for service connection should be re-adjudicated.  If it remains adverse, the Veteran and his representative should be provided a supplemental statement of the case and opportunity to respond before the case is returned to the Board. 

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 or by the Court 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).

_________________________________________________
MICHAEL E. KILCOYNE
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).