Citation Nr: 1302175 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-19 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Jonathan Bruce, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 2003 to January 2004. He had additional service in the National Guard. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal was before the Board in March 2010, at which time it was remanded for additional development. In March 2012 the Board denied service connection for bilateral hearing loss disability and remanded the issues of entitlement to service connection for an acquired psychiatric disorder and a total rating based on individual unemployability (TDIU). The Veteran appealed the denial of service connection for bilateral hearing loss disability to the U.S. Court of Appeals for Veterans Claims (Court). In September 2012 the Court granted the parties' Joint Motion for Remand, vacating the Board's March 2012 decision denying service connection for bilateral hearing loss disability, and remanding that issue for action consistent with the terms of the Joint Motion. The Board notes that the issues of entitlement to service connection for an acquired psychiatric disorder and a TDIU remain in remand status and are not addressed in this decision. The Board notes that in a May 2012 statement, the Veteran asserted that he had injuries to his neck, legs, and respiratory system in service as well as migraine headaches, and sinus and skin disorders, which continued thereafter. As such, issues of service connection have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board observes that there is a Virtual VA e-file for the Veteran. This e-file was reviewed for new or relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file and not pertinent to the current claim. 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 the August 2012 Joint Motion, the parties agreed that the Board had failed to ensure substantial compliance with the terms of its March 2010 remand order. Specifically, the parties pointed out that the remand order directed the VA examiner to comment on the relationship between the Veteran's hearing loss and his active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). They noted that the VA examiner failed to provide the requested discussion, pointing out that she instead exclusively addressed the Veteran's period of active duty service without mention of the ACDUTRA and INACDUTRA periods. They agreed that because the Board's remand order explicitly required such an opinion, the Board erred when it found that the October 2010 examination substantially complied with the remand order. They further agreed that remand was required to allow the Board to obtain a substantially compliant VA medical examination. In light of the above discussion, additional development is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his claimed bilateral hearing loss disability. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should provide opinions as follows: a. Is it 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 bilateral hearing loss was aggravated during the Veteran's period of active service from February 2003 to January 2004. A complete explanation for the opinion must be provided. If so, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. A complete explanation for the opinion must be provided. b. Is it 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 the Veteran's current bilateral hearing loss began in or is related to a period of ACDUTRA. Please provide a complete explanation for the opinion. c. Is it 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 the Veteran's current bilateral hearing loss, to the extent that it pre-existed periods of ACDUTRA, was permanently aggravated (i.e., worsened) beyond the natural progression during a period of ACDUTRA. Please provide a complete explanation for the opinion. d. Is it 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 the Veteran's current bilateral hearing loss resulted from an injury incurred or aggravated during a period of INACDUTRA. Aggravation means that there is a permanent worsening that is beyond the natural progression. Please provide a complete explanation for the opinion. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the RO should issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an 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 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. 2012). _________________________________________________ S. S. TOTH 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).